APPEAL,CLOSED,MANDAMUS,TYPE-L
U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:19-cv-00445-RBW

MUTHANA v. POMPEO et al Assigned to: Judge Reggie B. Walton Case in other court: USCA, 19-05362 Cause: 28:1331 Fed. Question

Date Filed: 02/21/2019 Date Terminated: 11/18/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
AHMED ALI MUTHANA individually, and as next friend of Hoda Muthana and Minor John Doe initials A.M.

represented by Charles Davidson Swift CONSTITUTIONAL LAW CENTER FOR MUSLIMS IN AMERICA 833 - E. Arapaho Rd. Suite 102 Richardson, TX 75081 (972) 914-2507 Fax: (972) 692-7454 Email: cswift@clcma.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Christina A. Jump Constitutional Law Center For Muslims in America 100 N. Central Expressway Suite 1010 Richardson, TX 75080 972-914-2507 Email: cjump@clcma.org ATTORNEY TO BE NOTICED

V. Defendant

MICHAEL R. POMPEO in his official capacity as Secretary of the Department of State
Defendant DONALD J. TRUMP in his official capacity as President of the United States

represented by Michael Anthony Celone DOJ-CIV Office of Immigration Litigation-District Court Section P.O. Box 868 Ben Franklin Station Washington, DC 20044-0868 202-305-5033 Fax: 202-305-7224 Email: michael.a.celone@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart MISSISSIPPI ATTORNEY GENERAL'S OFFICE 550 High Street Post Office Box 220 Suite 1100 Jackson, MS 39205 601-359-5563 Fax: 601-359-2003 Email: scott.stewart@ago.ms.gov TERMINATED: 01/15/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. U.S. ATTORNEY'S OFFICE 555 4th St NW Washington, DC 20530 (202) 252-2561 Fax: (202) 252-2599 Email: joseph.carilli@usdoj.gov ATTORNEY TO BE NOTICED
represented by Michael Anthony Celone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) TERMINATED: 01/15/2021 LEAD ATTORNEY

Defendant WILLIAM P. BARR in his official capacity as Attorney General
Amicus CENTER FOR CONSTITUTIONAL JURISPRUDENCE

ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by Michael Anthony Celone (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Scott Grant Stewart (See above for address) TERMINATED: 01/15/2021 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph F. Carilli , Jr. (See above for address) ATTORNEY TO BE NOTICED
represented by John C. Eastman CENTER FOR CONSTITUTIONAL JURISPRUDENCE C/O Chapman University School of Law One University Drive Orange, CA 92866 877-855-3330 ext 2 Fax: (714) 844-4817 Email: jeastman@chapman.edu LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Julie B. Axelrod CENTER FOR IMMIGRATION STUDIES 1629 K Street, NW Suite 600 Washington, DC 20006 (703) 888-2442

Amicus CENTER FOR IMMIGRATION STUDIES
Amicus IMMIGRATION REFORM LAW INSTITUTE

Fax: (202) 466-8076 Email: jba@cis.org ATTORNEY TO BE NOTICED
represented by Julie B. Axelrod (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Christopher Joseph Hajec IMMIGRATION REFORM LAW INSTITUTE 25 Massachusetts Avenue, NW Suite 335 Washington, DC 20001 (202) 232-5590 Email: chajec@irli.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed

#

02/21/2019 1

02/21/2019 2
02/22/2019

Docket Text
COMPLAINT Seeking Expedited Relief against WILLIAM P. BARR, MICHAEL R. POMPEO, DONALD J. TRUMP ( Filing fee $ 400 receipt number 0090-5959743) filed by AHMED ALI MUTHANA. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Affidavit Exhibit A to Complaint, # 4 Exhibit Birth Certificate, # 5 Exhibit United States Mission to United Nations Letter, # 6
Exhibit Department of State Letter, # 7 Exhibit Letter from Charles D. Swift, # 8 Exhibit Letter from U.S. Attorney ND AL)(Jump, Christina) (Entered: 02/21/2019)
Emergency MOTION to Expedite by AHMED ALI MUTHANA (Attachments: # 1 Text of Proposed Order)(Jump, Christina) (Entered: 02/21/2019)
Case Assigned to Judge Reggie B. Walton. (zef, ) (Entered: 02/22/2019)

02/22/2019 02/22/2019 02/22/2019 02/26/2019
02/26/2019
02/26/2019 02/27/2019 02/27/2019

SUMMONS Not Issued as to WILLIAM PELHAM BARR, MICHAEL POMPEO, DONALD J. TRUMP (zef, ) (Entered: 02/22/2019)

ERRATA Correcting Page 1 of Complaint and Requests for 3
Summons by AHMED ALI MUTHANA 1 Complaint,, filed by AHMED ALI MUTHANA. (Attachments: # 1 Errata Revised Page One of Complaint, # 2 Errata Summons)(Jump, Christina) (Entered: 02/22/2019)

4 SUMMONS (5) Issued Electronically as to WILLIAM PELHAM BARR, MICHAEL POMPEO, DONALD J. TRUMP, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 02/22/2019)

RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint

5

Executed on United States Attorney General. Date of Service Upon

United States Attorney General 02/25/2019., RETURN OF

SERVICE/AFFIDAVIT of Summons and Complaint Executed as to

the United States Attorney. Date of Service Upon United States

Attorney on 2/25/2019. ( Answer due for ALL FEDERAL

DEFENDANTS by 4/26/2019.), RETURN OF

SERVICE/AFFIDAVIT of Summons and Complaint Executed.

WILLIAM PELHAM BARR served on 2/25/2019; MICHAEL

POMPEO served on 2/25/2019; DONALD J. TRUMP served on

2/25/2019 (Jump, Christina) (Entered: 02/26/2019)

MINUTE ORDER. Upon consideration of the 2 Plaintiff's Motion for Expedited Hearing, and for good cause shown, it is hereby ORDERED that the parties shall appear before the Court for a hearing on the plaintiff's Expedited Complaint for Declaratory Judgment, Injunctive Relief and Petition for Writ of Mandamus on March 4, 2019, at 11:00 a.m. Signed by Judge Reggie B. Walton on February 26, 2019. (lcrbw2) (Entered: 02/26/2019)

GENERAL ORDER FOR CIVIL CASES BEFORE THE

6

HONORABLE REGGIE B. WALTON. Signed by Judge Reggie B.

Walton on February 26, 2019. (lcrbw2) (Entered: 02/26/2019)

NOTICE of Appearance by Charles Davidson Swift on behalf of

7

AHMED ALI MUTHANA (Swift, Charles) (Entered: 02/27/2019)

Set/Reset Hearings: Motion Hearing set for 3/4/2019 at 11:00 AM in Courtroom 16 before Judge Reggie B. Walton. (hs) (Entered: 02/27/2019)

02/28/2019 8

NOTICE of Appearance by Joseph F. Carilli, Jr on behalf of WILLIAM PELHAM BARR, MICHAEL POMPEO, DONALD J. TRUMP (Carilli, Joseph) (Entered: 02/28/2019)

02/28/2019 9

MOTION for Leave to File Memorandum of Law by AHMED ALI MUTHANA (Attachments: # 1 Text of Proposed Order, # 2 Exhibit Memorandum of Law)(Swift, Charles) (Entered: 02/28/2019)

03/01/2019

MINUTE ORDER. Upon consideration of the 9 Plaintiff's Motion for Leave to File Memorandum of Law in Support of Plaintiff's Expedited Complaint for Declaratory, Injunctive and Mandamus Relief, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Plaintiff's Memorandum of Law in Support of Expedited Complaint for Declaratory, Injunctive and Mandamus Relief, ECF No. 9-2, is ACCEPTED AS FILED, and the Clerk of the Court shall file it as a separate entry on the docket. It is further ORDERED that the defendants shall file a response to the plaintiff's Complaint, if any, on or before March 4, 2019, at 8:00 a.m. Signed by Judge Reggie B. Walton on March 1, 2019. (lcrbw2) (Entered: 03/01/2019)

03/01/2019

10 NOTICE of Appearance by Scott Grant Stewart on behalf of All Defendants (Stewart, Scott) (Entered: 03/01/2019)

03/01/2019 11

MOTION for Leave to File Amicus Brief by Center for Constitutional Jurisprudence (Attachments: # 1 Exhibit A- Proposed Amicus Brief, # 2 Text of Proposed Order)(Axelrod, Julie) (Entered: 03/01/2019)

03/01/2019 12

MOTION for Leave to Appear Pro Hac Vice :Attorney Name- John C. Eastman, :Firm- Center for Constitutional Jurisprudence, :Address- One University Drive, Orange, CA 92866. Phone No. 877-855-3330 ext 2. Fax No. - 714-844-4817 Filing fee $ 100, receipt number 0090-5976684. Fee Status: Fee Paid. by Center for Constitutional Jurisprudence (Attachments: # 1 Declaration of John Eastman, # 2 Text of Proposed Order)(Axelrod, Julie) (Entered: 03/01/2019)

03/01/2019 15

SUPPLEMENTAL MEMORANDUM to re 1 Complaint,, filed by AHMED ALI MUTHANA. (ztd) (Entered: 03/04/2019)

03/03/2019 13

MOTION for Leave to Appear by Telephone Request to Appear Telephonically by Center for Constitutional Jurisprudence (Axelrod, Julie) Modified on 3/14/2019 (znmw). (Entered: 03/03/2019)

03/04/2019 14
03/04/2019
03/04/2019
03/04/2019
03/04/2019 16

RESPONSE TO ORDER OF THE COURT re Order on Motion for Leave to File,, filed by WILLIAM PELHAM BARR, MICHAEL POMPEO, DONALD J. TRUMP. (Attachments: # 1 Exhibit Index,

# 2 Exhibit A, # 3 03/04/2019)

Exhibit B)(Carilli, Joseph) (Entered:

MINUTE ORDER. The Court having considered the Center for

Constitutional Jurisprudence's 12 Motion for Admission of Attorney Pro Hac Vice, and it appearing to the Court that the attorney referenced therein meets the requirements for pro hac vice admission under this Court's rules, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that John C. Eastman, Center for Constitutional Jurisprudence, Chapman University Fowler School of Law, One University Drive, Orange, CA 92866, is ADMITTED to practice before the Court pro hac vice. Signed by Judge Reggie B. Walton on March 4, 2019. (lcrbw2) (Entered: 03/04/2019)

MINUTE ORDER. Upon consideration of the Center for

Constitutional Jurisprudence's 13 Request to Appear Telephonically, and for good cause shown, it is hereby ORDERED that the request is GRANTED. It is further ORDERED that John Eastman may appear telephonically at the hearing scheduled for March 4, 2019. The Clerk of the Court shall provide Dr. Eastman with instructions for his telephonic appearance. Signed by Judge Reggie B. Walton on March 4, 2019. (lcrbw2) (Entered: 03/04/2019)

MINUTE ORDER. Upon consideration of the Center for

Constitutional Jurisprudence's 11 Motion for Leave to File Amicus Curiae Brief and Proposed Brief of Amicus Curiae Center for Constitutional Jurisprudence, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Brief of Amicus Curiae Center for Constitutional Jurisprudence in Support of Defendants/Respondents, ECF No. 11-1, is ACCEPTED AS FILED, and the Clerk of the Court shall file it as a separate entry on the docket. Signed by Judge Reggie B. Walton on March 4, 2019. (lcrbw2) (Entered: 03/04/2019)

AMICUS BRIEF by CENTER FOR CONSTITUTIONAL JURISPRUDENCE. (ztd) (Entered: 03/04/2019)

03/04/2019

Minute Entry; for proceedings held before Judge Reggie B. Walton:

03/04/2019

Oral Argument held on 3/4/2019. Plaintiff's 2 Motion for Expedited Consideration; heard and denied. (Court Reporter Jeff Hook) (hs) (Entered: 03/04/2019)
17 TRANSCRIPT OF MOTIONS HEARING before Judge Reggie B. Walton held on March 4, 2019. Page Numbers: 1 - 46. Date of Issuance: March 4, 2019. Court Reporter: Jeff Hook. Telephone number: 202-354-3373. Transcripts may be ordered by submitting the Transcript Order Form For the first 90 days after this filing date, the transcript may be viewed at the courthouse at a public terminal or purchased from the court reporter referenced above. After 90 days, the transcript may be accessed via PACER. Other transcript formats, (multi-page, condensed, CD or ASCII) may be purchased from the court reporter.

NOTICE RE REDACTION OF TRANSCRIPTS: The parties have twenty-one days to file with the court and the court reporter any request to redact personal identifiers from this transcript. If no such requests are filed, the transcript will be made available to the public via PACER without redaction after 90 days. The policy, which includes the five personal identifiers specifically covered, is located on our website at www.dcd.uscourts.gov.

03/11/2019 18

Redaction Request due 3/25/2019. Redacted Transcript Deadline set for 4/4/2019. Release of Transcript Restriction set for 6/2/2019.(Hook, Jeff) (Entered: 03/04/2019)
ORDER. In accordance with the attached Order, it is hereby ORDERED that the plaintiff's request for expedited consideration

of this case raised in the plaintiff's 1 Expedited Complaint for Declaratory Judgment, Injunctive Relief and Petition for Writ of Mandamus is DENIED. Signed by Judge Reggie B. Walton on March 11, 2019. (lcrbw2) (Entered: 03/11/2019)

04/26/2019 19

MOTION to Dismiss for Lack of Jurisdiction by WILLIAM PELHAM BARR, MICHAEL POMPEO, DONALD J. TRUMP (Attachments: # 1 Exhibit Index, # 2 Exhibit A, # 3 Exhibit B, # 4 Text of Proposed Order)(Carilli, Joseph). Added MOTION for Partial Summary Judgment on 4/29/2019 (ztd). (Entered: 04/26/2019)

05/03/2019 20
05/06/2019
05/06/2019 21
05/07/2019 22
05/07/2019
05/07/2019 23
05/10/2019 24

MOTION for Leave to File Amicus Brief by CENTER FOR IMMIGRATION STUDIES (Attachments: # 1 Exhibit Proposed Amicus Brief)(Axelrod, Julie) (Entered: 05/04/2019)
MINUTE ORDER. Upon consideration of the 20 Motion for Leave to File Amicus Curiae Brief and Proposed Brief of Amicus Curiae Center for Immigration Studies, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Brief of Amicus Curiae Center for Immigration Studies in Support of Defendants/Respondents, ECF No. 20-1, is ACCEPTED AS FILED, and the Clerk of the Court shall file it as a separate entry on the docket. Signed by Judge Reggie B. Walton on May 6, 2019. (lcrbw2) (Entered: 05/06/2019)
AMICUS BRIEF by CENTER FOR IMMIGRATION STUDIES. (ztd) (Entered: 05/06/2019)
Unopposed MOTION for Leave to File Amicus Curiae Brief in Support of Defendants by IMMIGRATION REFORM LAW INSTITUTE (Attachments: # 1 Exhibit Brief of Amicus Curiae in Support of Defendants, # 2 Text of Proposed Order Granting Motion for Leave to File Amicus Curiae Brief)(Hajec, Christopher) (Entered: 05/07/2019)
MINUTE ORDER. Upon consideration of the 22 Unopposed Motion of Immigration Reform Law Institute for Leave to File Amicus Curiae Brief in Support of Defendants, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Brief of Amicus Curiae Immigration Reform Law Institute in Support of Defendants, ECF No. 22-1, is ACCEPTED AS FILED, and the Clerk of the Court shall file it as a separate entry on the docket. Signed by Judge Reggie B. Walton on May 7, 2019. (lcrbw2) (Entered: 05/07/2019)
AMICUS BRIEF by IMMIGRATION REFORM LAW INSTITUTE. (ztd) (Entered: 05/08/2019)
RESPONSE re 19 MOTION to Dismiss for Lack of Jurisdiction MOTION for Partial Summary Judgment filed by AHMED ALI MUTHANA. (Attachments: # 1 Exhibit Exhibit Inddex, # 2 Exhibit Exhibit A - Declaration of Plaintiff, # 3 Exhibit Exhibit B - Raya B. Clinton Reply Brief, # 4 Exhibit Exhibit C - 7 FAM 1100, # 5 Text of Proposed Order)(Jump, Christina) (Entered: 05/10/2019)

05/13/2019 25

ERRATA with Corrected Memorandum in Opposition to Defendants' Motion to Dismiss or in the Alternative Motion for Partial Summary Judgment by AHMED ALI MUTHANA 24

Response to motion, filed by AHMED ALI MUTHANA. (Attachments: # 1 Exhibit Corrected Plaintiff's Memorandum in Opposition)(Jump, Christina) (Entered: 05/13/2019)

05/17/2019 26

REPLY to opposition to motion re 19 MOTION to Dismiss for Lack of Jurisdiction MOTION for Partial Summary Judgment filed by WILLIAM PELHAM BARR, MICHAEL POMPEO, DONALD J. TRUMP. (Attachments: # 1 Exhibit A)(Carilli, Joseph) (Entered: 05/17/2019)

11/01/2019

27 SEALED MOTION filed by AHMED ALI MUTHANA (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Exhibit B, # 3 Text of Proposed Order Proposed Order)(Jump, Christina) (Entered: 11/01/2019)

11/01/2019 28

MOTION for Leave to File Renewed Motion for Expedited Ruling (Doc. 27) Under Seal by AHMED ALI MUTHANA (Attachments: # 1 Text of Proposed Order Proposed Order)(Jump, Christina) (Entered: 11/01/2019)

11/01/2019 29

REDACTED DOCUMENT- Redacted Renewed Motion for Expedited Ruling to 27 SEALED MOTION filed by AHMED ALI

MUTHANA, 28 MOTION for Leave to File Renewed Motion for Expedited Ruling (Doc. 27) Under Seal by AHMED ALI MUTHANA. (Attachments: # 1 Exhibit Declaration, # 2 Exhibit Exhibit B, # 3 Text of Proposed Order Proposed Order)(Jump, Christina) (Entered: 11/01/2019)

11/05/2019

MINUTE ORDER. Upon consideration of the 28 Plaintiff's Motion for Leave to File Documents Under Seal, and for good cause shown, it is hereby ORDERED that the motion is GRANTED. It is further ORDERED that the Plaintiff's Renewed Motion for Expedited Ruling, ECF No. 27, is ACCEPTED AS FILED, and shall remain under seal until further order of the Court. It is further ORDERED that the parties shall appear before the Court for a hearing on the defendants' motion to dismiss on November 14, 2019, at 11:30 a.m. Signed by Judge Reggie B. Walton on November 5, 2019. (lcrbw2) (Entered: 11/05/2019)

11/06/2019

Set/Reset Hearings: Motion Hearing set for 11/14/2019 at 11:30 AM in Courtroom 16 before Judge Reggie B. Walton. (hs) (Entered: 11/06/2019)

11/14/2019

Minute Entry; for proceedings held before Judge Reggie B. Walton: Motion Hearing held on 11/14/2019. (Court Reporter Lisa Griffith) (hs) (Entered: 11/14/2019)

11/15/2019 30

ORDER. See attached Order for details. Signed by Judge Reggie B. Walton on November 15, 2019. (lcrbw2) (Entered: 11/15/2019)

12/09/2019

31 SEALED MEMORANDUM OPINION, Signed by Judge Reggie B. Walton on 12/9/2019.(This document is SEALED and only available to authorized persons.)(hs) (Entered: 12/09/2019)

12/09/2019

MINUTE ORDER. It is hereby ORDERED that, on or before December 16, 2019, the parties shall meet and confer and file a proposed redacted version of the Court's sealed December 9, 2019 Memorandum Opinion, ECF No. 31, to be filed on the public docket. Signed by Judge Reggie B. Walton on December 9, 2019. (lcrbw2) (Entered: 12/09/2019)

12/16/2019 32

NOTICE of Lodging by WILLIAM P. BARR, MICHAEL RICHARD POMPEO, DONALD J. TRUMP (Attachments: # 1

Exhibit)(Carilli, Joseph) (Entered: 12/16/2019)

12/17/2019 33

REDACTED MEMORANDUM OPINION. Signed by Judge Reggie B. Walton on December 9, 2019. (lcrbw2) (Entered: 12/17/2019)

12/18/2019 34

ENTERED IN ERROR. . . . .NOTICE of Appeal by AHMED ALI MUTHANA (Jump, Christina) Modified on 12/19/2019 (ztd). (Entered: 12/18/2019)

12/19/2019

NOTICE OF ERROR re 34 Notice (Other); emailed to cjump@clcma.org, cc'd 12 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect event used, 2. FYI, on future filing of appeals, use the event Notice of Appeal under Appeal Documents. (ztd, ) (Entered: 12/19/2019)

12/19/2019

NOTICE OF ERROR re 34 Notice (Other); emailed to cjump@clcma.org, cc'd 12 associated attorneys -- The PDF file you docketed contained errors: 1. Incorrect event used, 2. Please refile

document, 3. Incorrect event used and the fee can be paid when the correct Appeal event is selected. (ztd, ) (Entered: 12/19/2019)

12/20/2019 35

NOTICE OF APPEAL TO DC CIRCUIT COURT by AHMED ALI MUTHANA. Fee Status: Paid; Receipt Number: ADCDC6663736. Parties have been notified. (Jump, Christina) Modified on 12/23/2019 to enter payment information.(ztnr) (Entered: 12/20/2019)

12/23/2019

36 Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The fee remains to be paid and another notice will be transmitted

when the fee has been paid in the District Court re 35 Notice of Appeal to DC Circuit Court. (ztd) (Entered: 12/23/2019)

12/23/2019

37 Supplemental Record on Appeal transmitted to US Court of

Appeals re 35 Notice of Appeal to DC Circuit Court ; (REDACTED) (ztd) (Entered: 12/23/2019)

12/23/2019

USCA Appeal Fees received $ 505 receipt number ADCDC-

6663736 re 35 Notice of Appeal to DC Circuit Court filed by AHMED ALI MUTHANA (ztd) (Entered: 12/23/2019)

12/23/2019

38 Supplemental Record on Appeal transmitted to US Court of Appeals re USCA Appeal Fees ; (ztd) (Entered: 12/23/2019)

12/30/2019

USCA Case Number 19-5362 for 35 Notice of Appeal to DC Circuit Court filed by AHMED ALI MUTHANA. (zrdj) (Entered: 12/30/2019)

01/15/2021

39 NOTICE of Appearance by Michael Anthony Celone on behalf of WILLIAM P. BARR, MICHAEL R. POMPEO, DONALD J. TRUMP (Celone, Michael) (Entered: 01/15/2021)

01/15/2021

40 NOTICE OF WITHDRAWAL OF APPEARANCE as to WILLIAM P. BARR, MICHAEL R. POMPEO, DONALD J. TRUMP. Attorney Scott Grant Stewart terminated. (Celone, Michael) (Entered: 01/15/2021)

03/15/2021

41 MANDATE of USCA as to 35 Notice of Appeal to DC Circuit Court filed by AHMED ALI MUTHANA ; USCA Case Number

19-5362. (Attachment: # 1 USCA Judgment) (ztth) (Entered: 03/22/2021)

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 Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 1 of 32

CHARLES D. SWIFT (D.C. ID No. 987353) cswift@clcma.org
CHRISTINA A. JUMP (D.C. ID No. TX151) cjump@clcma.org
Constitutional Law Center for Muslims in America (CLCMA) 833 E. Arapaho Rd., Ste. 102 Richardson, TX 75081 Tel: (972) 914-2507; Fax: (972) 692-7454
Attorneys for Plaintiff
IN THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF COLUMBIA

AHMED ALI MUTHANA, individually, and as next friend of Hoda Muthana and Minor John Doe [initials A.M.] 133 Pine Rock Lane, Hoover, AL 35226
Plaintiff/Petitioner,
vs.
Michael Pompeo, in his official capacity as Secretary of the Department of State, whose official address is 2201 C St., NW Washington, DC 20520; Donald J. Trump, in his official capacity as President of the United States; and William Pelham Barr in his official capacity as Attorney General.
Defendants/Respondents.

Cause No. _______ CIVIL ACTION

EXPEDITED COMPLAINT FOR DECLARATORY JUDGMENT, INJUNCTIVE RELIEF AND PETITION FOR WRIT OF MANDAMUS

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 2 of 32
Plaintiff Ahmed Ali Muthana, individually and as Next Friend of Hoda Muthana and Minor John Doe, by and through undersigned counsel, files this Expedited Complaint for Declaratory Judgment and Injunctive Relief against Michael Pompeo, in his official capacity as Secretary of the Department of State, Donald J. Trump, in his official capacity as President of the United States, and William Pelham Barr, in his official capacity as Attorney General. This Complaint is supported by the following factual background and claims for relief:
I. RELIEF SOUGHT 1. Ahmed Ali Muthana, as next friend of Hoda Muthana and Minor John Doe, seeks declaratory relief recognizing the citizenship of his daughter and grandson until and such time as her citizenship is validly revoked in accordance with the Constitution and United States statutes. Additionally, Plaintiff seeks injunctive and mandamus relief obligating the United States to accept Ms. Muthana and her son back into the United States and to use all available means to do so. Finally, he seeks a declaratory judgment that Plaintiff Ahmed Ali Muthana is entitled to send his daughter money to ensure the survival of his daughter and grandson, and enable them safe passage home, without subjecting himself to criminal liability under 18 U.S.C. § 2339B.
II. PARTIES
2. Plaintiff Ahmed Ali Muthana is a naturalized United States citizen living in the United States and domiciled in Alabama. He is the father of Hoda Muthana, and the grandfather of Minor John Doe Muthana.
3. Hoda Muthana is a United States citizen by birthright, and is currently detained in Syria by Kurdish forces at Camp al-Hawl. Her interests in this matter are represented by her father, Ahmed Ali Muthana, as Next Friend.
2

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 3 of 32
4. Minor John Doe is a United States citizen by acquisition as the natural child of his mother, Hoda Muthana, who had resided in the United States for more than five years prior to his birth. Minor John Doe is currently detained with his mother in Syria by Kurdish forces at Camp al-Hawl. His interests in this matter are represented by his grandfather, Ahmed Ali Muthana, as Next Friend.
5. Defendant Michael Pompeo is sued in his official capacity as Secretary of the Department of State.
6. Defendant Donald J. Trump is sued in his official capacity as President of the United States. 7. Defendant William Pelham Barr is sued in his official capacity as Attorney General of the United States.
III. NEXT FRIEND STATUS 8. Next Friend status on behalf of Hoda Muthana and Minor John Doe is appropriate because Ms. Muthana and Minor John Doe are interred in a Kurdish camp in Syria, with limited and inconsistent access to the internet or other communications, and have had difficulty communicating with counsel. 9. Ahmed Ali Muthana, as father to Hoda Muthana and grandfather to Minor John Doe, has interests in having his daughter and grandson declared to be United States citizens and returned to the United States, which are aligned with theirs. Further, both counsel and Mr. Muthana have received communications from Ms. Muthana indicating her desire to return, despite being advised that a successful result of declaratory relief of citizenship will likely result in her being subject to criminal prosecution for alleged conduct for which she otherwise could not be charged, absent the relief sought in this Complaint. Therefore, Mr. Muthana serves as an appropriate representative for their interests.
3

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 4 of 32
IV. JURISDICTION 10. The District Court for the District of Columbia has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, which states that “the district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws or treaties of the United States.” 11. Jurisdiction is further proper under the general equity jurisdiction granted by 28 U.S.C. § 1331(a), where, as here, a case is brought by an aggrieved party against a federal agency. See Fort Sumter Tours, Inc. v. Andrus, 564 F.2d 1119 (4th Cir. 1977). 12. Jurisdiction is also proper in this Court under the terms of 18 U.S.C. § 2339, which specifically provide that there will be “jurisdiction over an offense under subsection (a) if…the offense occurs in whole or in part within the United States.”1 13. This Court further has jurisdiction under the authority of 28 U.S.C. § 1361. 14. Expedited consideration is appropriate in this matter pursuant to Federal Rule of Civil Procedure 57, due to the harm set forth below which, without the expeditious ruling of this Court, will result and damage the interests of Plaintiff Ahmed Ali Muthana, and the interests of Hoda Muthana and Minor John Doe (brought via Ahmed Ali Muthana, as Next Friend).
V. EXPEDITED RELIEF 15. This Expedited Complaint for Declaratory Judgment, Injunctive Relief and Petition for Writ of Mandamus requests that the United States facilitate the return of its citizens, Hoda Muthana and her son Minor John Doe, in conformity with their legal rights to return both under United States law and applicable international law. Expedited relief is appropriate here because of the precarious position of Plaintiff Muthana’s daughter and grandson in Camp al-Hawl in Syria, under the authority of Kurdish forces. The President of the United States has announced his intent to
1 18 U.S.C. § 2339B(d)(1). 4

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 5 of 32

withdraw U.S. forces from the Syrian conflict, and upon information and belief this withdrawal has commenced. Upon withdrawal, the ability of the United States to obtain military cooperation from the Kurdish forces, with which they have been previously aligned, will be greatly diminished if even possible. Accordingly, as set forth below, the failure of the United States to facilitate the return of Ms. Muthana and her son as it is obligated to do under the Constitution and the Fourth Geneva Convention will cause immediate and irreparable harm by jeopardizing their ability in the future to return to the United States.2

VI. VENUE

16. Venue is proper in this Court under §1391(e)(1), which states in relevant part that “a civil

action in which a defendant is an officer or employee of the United States or an agency thereof

acting in his official capacity…may…be brought in any judicial district in which (A) a defendant

in the action resides.”

VII.

STATEMENT OF FACTS

17. Ahmed Ali Muthana is a naturalized United States citizen. He is also the father of Hoda Muthana, and the grandfather of Minor John Doe. Accordingly, he brings this action on his own behalf for declaratory judgment, and as proper Next Friend of Hoda Muthana and Minor John Doe for injunctive and mandamus relief.

2 “The Planned U.S. Troop Withdrawal from Syria: Here’s the Latest,” The New York Times, January 16, 2019 (https://www.nytimes.com/2019/01/16/world/middleeast/syria-us-troopstimeline.html) (last accessed January 20, 2019).
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18. Prior to his daughter’s birth, Ahmed Ali Muthana worked as a diplomat for the United Nations. Declaration of Ahmed Ali Muthana, attached hereto as Exhibit A. On June 2, 1994, the Yemeni Ambassador Al-Aashtal required Mr. Muthana to surrender his diplomatic identity card.
19. Anticipating the loss of diplomatic status, Mr. Muthana’s wife (Ms. Muthana’s mother) applied for permanent residency status in the United States in early 1994, based on her own father’s United States citizenship. She was granted admission to the United States on July 7, 1994, pending permanent residency. Her permanent residency, along with Mr. Muthana’s, was subsequently granted.
20. Hoda Muthana was born in the state of New Jersey on October 28, 1994. See Ex. B. 21. Utilizing his daughter’s birth certificate, Mr. Muthana applied for a passport for his minor daughter Hoda Muthana in 2004. After receiving this application, officials from the United States State Department initially questioned whether Ms. Muthana was eligible for a U.S. passport, based on their records showing her father’s diplomatic status remained in effect until February 6, 1995. In response, Ahmed Ali Muthana provided the government with Exhibit C, a letter from the United States Mission to the United Nations, signed by Russell F. Graham, Minister Counselor for Host Country Affairs, and addressed to Bureau of Citizenship and Immigration Services, which confirms that the diplomatic status he had due to his employment at the U.N. was terminated prior to the time of Ms. Muthana’s birth. The United States accepted this documentation and issued Hoda Muthana the requested passport on January 24, 2005. Exhibit D. The United States also later renewed Ms. Muthana’s passport on February 21, 2014. Id. 22. In November 2014, Ms. Muthana, now a student at University of Alabama at Birmingham, told her parents that she was going to Atlanta, Georgia as part of a field trip; instead she withdrew
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from school and used her tuition reimbursement to purchase a plane ticket to Turkey. From Turkey, she traveled to Syria.
23. After arriving in Syria, Ms. Muthana made her way to ISIS-controlled territory, and less than a month after her arrival married Suhan Rahaman, now deceased. Suhan Rahaman was a citizen of Australia. Suhan Rahaman was killed 87 days after his marriage to Ms. Muthana.3
24. Shortly thereafter, Ms. Muthana married her second husband, a Tunisian fighter. She became pregnant during that marriage, and is now traveling with her young son (herein referenced as “Minor John Doe”). Minor John Doe was facially eligible for acquired United States citizenship at birth via his United States citizen mother. 8 U.S.C. § 1401(g). Her second husband was also killed.
25. On January 15, 2016, the United States issued a letter addressed to Ms. Muthana at her parents’ residence, purporting to revoke her passport under 22 C.F.R. 51.7 and 51.66. Exhibit D. In the revocation letter, the government again acknowledged that her father’s diplomatic position ended on September 1, 1994, but now asserted for the first time that because the U.S. Permanent Mission to the United Nations, Host Country Affairs Section, had not been officially notified of his termination until February 6, 1995, she was not “within the jurisdiction of the United States” at the time of her birth, and therefore not a United States citizen pursuant to the Fourteenth Amendment to the Constitution.
26. The Section cited by the government in its January 15, 2016 letter is the U.S. Permanent Mission to the United Nations, Host Country Affairs Section. This is the same Section which signed the letter attached hereto at Exhibit C and provided by Mr. Muthana in 2005 to the United
3 https://www.theguardian.com/world/2019/feb/17/us-woman-hoda-muthana-deeply-regretsjoining-isis-and-wants-return-home?CMP=fb_gu (last viewed February 19, 2019).
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States Department of State: the United States Mission to the United Nations, Host Country Affairs. Despite claiming in 2016 that the Host Country Affairs Section did not have knowledge of Mr. Muthana’s termination from his diplomatic position until February 1995, the Minister Counselor for Host Country Affairs, Russell F. Graham, signed the letter at Exhibit C on October 18, 2004, recognizing that the records of the United States Mission to the United Nations reflect that Mr. Muthana’s diplomatic position ended on September 1, 1994. See Ex. C.
27. The United States State Department’s position in its January 15, 2016 letter regarding the termination of diplomatic immunity contradicts its prior interpretations of the Vienna Convention on Diplomatic Relations that diplomatic immunity terminates at the time the diplomat’s position is terminated. United States v. Guinand, 688 F. Supp. 774, 775 (D.D.C. 1988) (quoting a declaration of the legal adviser of the Department of State Judge Abraham Sofaer, that “[t]he United States Government has consistently interpreted Article 39 of the [Vienna Convention on Diplomatic Relations] to permit the exercise of U.S. jurisdiction over persons whose status as members of the diplomatic mission has been terminated[,] for acts they committed during the period in which they enjoyed privileges and immunities, except for acts performed in the exercise of the functions as a member of the mission.”).
28. Plaintiff Muthana responded at the time that his daughter was not in the country, and reiterated that at the time of his initial application for a passport for Ms. Muthana, Plaintiff Ahmed Ali Muthana had provided proof that he was no longer a diplomat when Ms. Muthana was born.
29. Plaintiff Ahmed Ali Muthana also clarified in the same correspondence that he had been terminated from his position as a diplomat on June 1, 1994, as a result of the Civil War in Yemen at the time. On June 2, 1994, he surrendered all of his UN identification to the Yemen Mission to the United Nations at the request of then-Ambassador Al-Aashtal, with the understanding that the
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same information was communicated to the United Nations and the United States Permanent Mission to the United Nations. See Exhibit A, Declaration of Ahmed Ali Muthana.
30. Ms. Muthana fled ISIS-controlled territory beginning on or about December 16, 2018, which upon information and belief was after several months of looking for opportunities, and more than one failed escape attempt. Initially, she fled to the village of Susa.
31. She subsequently surrendered to Kurdish forces, who transferred her to Camp Al-Hawl in northeast Syria, about 25 miles east of al-Hasakah. Upon information and belief, Ms. Muthana and her son are both currently located at Camp Al-Hawl.
32. At the time of her surrender, Ms. Muthana identified herself and her son as United States citizens. Despite this identification, she was not interred with other persons believed to be United States citizens.
33. On January 15, 2019, the undersigned counsel wrote to the United States Attorney for the Northern District of Alabama (the district from which Ms. Muthana left the country), asserting her status as a United States citizen and communicating her desire to return as well as her willingness to surrender to United States authorities for any contemplated charges.
34. On January 24, 2019, the United States Attorney responded that he had referred the matter to the State Department. Undersigned counsel received no further communication from the United States regarding Ms. Muthana.
35. On February 20, 2019, the United States State Department declared on its website that “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted into the United States. She does not
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have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.”4
36. Later on February 20, 2019, President Donald J. Trump tweeted that “I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!”5
37. Prior to the above proclamations, the United States has not initiated any action in the courts of the United States to revoke Ms. Muthana’s citizenship.6
38. Ahmed Ali Muthana, as next friend of Hoda Muthana and Minor John Doe, seeks to exercise their rights as United States citizens to return to their home country. Ms. Muthana has repeatedly and openly renounced ISIS in all recent statements, and is no longer in any ISIScontrolled area. Minor John Doe is also no longer in ISIS-controlled territory.
4 Press Release dated February 20, 2019, located on Department of State website (https://www.state.gov/secretary/remarks/2019/02/289558.htm) (last visited February 20, 2019). 5 https://twitter.com/realdonaldtrump/status/1098327855145062411?s=21 (last visited February 20, 2019). 6 Birthright citizenship may be revoked under 8 U.S.C. § 1481 for “formal declaration of allegiance to a foreign state or a political subdivision thereof.” However, none of the circumstances set out in § 1401 is facially applicable to the facts of this case, as ISIS is not and has not been recognized as a state by the United States, or any country. And, Ms. Muthana’s actions do not meet the definition of treason as required by the statute. Apart from § 1481, counsel is not aware of any statutory process to revoke recognized birthright citizenship.
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VIII. CLAIMS FOR RELIEF a. Count 1: Mr. Muthana, on behalf of his daughter, seeks injunctive relief
preventing the United States’ unlawful attempt to rescind her citizenship in violation of the United States Constitution, as she became a United States citizen at the time of her birth in the United States due to her father no longer serving as a diplomat. 39. The Fourteenth Amendment to the U.S. Constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”7 40. The question of whether a diplomat and/or family members are immune from the jurisdiction of the United States is a question of fact for the Court to decide, and is not subject to unilateral determination by the government. See United States ex rel. Casanova v. Fitzpatrick, 214 F. Supp. 425, 433 (S.D.N.Y. 1963) (holding that “[w]hether, upon the facts presented by both the Government and the individual involved or his government, immunity exists by reason of the agreement, is not a political question, but a justiciable controversy involving the interpretation of the agreement and its application to the particular facts. In this instance the decision is for the Court and it is not concluded by the unilateral statement of the Government, a party to that agreement”). 41. Immunity for a diplomat and family members lasts only as long as the diplomatic position itself. “[C]onsular and diplomatic immunity expire after the officer's appointment has been terminated and she has departed the United States, or after a reasonable time for departure has passed.” United States v. Khobragade, 15 F. Supp. 3d 383, 386 (S.D.N.Y. 2014); see also United States v. Guinand, 688 F. Supp. 774, 775 (D.D.C. 1988) (quoting a declaration of the legal adviser of the Department of State Judge Abraham Sofaer, that “[t]he United States Government has consistently interpreted Article 39 of the [Vienna Convention on Diplomatic Relations] to permit
7 U.S. Const. Amend. XIV. 11

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 12 of 32
the exercise of U.S. jurisdiction over persons whose status as members of the diplomatic mission has been terminated”) (emphasis added). A “reasonable time” is usually interpreted as thirty days. Guinand, 668 F. Supp. at 774.
42. As a matter of law, Mr. Muthana’s termination from his diplomatic position no later than September 1, 1994 and his subsequent decision to remain in the United States within a reasonable period of time terminated his diplomatic immunity and therefore that as to his family, subjecting both he and his family members to the jurisdiction of the United States at the time of Ms. Muthana’s birth on October 28, 1994.
43. Where an individual was born in the United States, and is therefore an American citizen, “neither the Congress, nor the Executive, nor the judiciary, nor all three in concert” is able to strip away that right. Mitsugi Nishikawa v. Dulles, 356 U.S. 129, 138, 78 S. Ct. 612, 618, 2 L. Ed. 2d 659 (1958).
44. Accordingly, the decision by the Secretary of the Department of State and President Trump to unilaterally declare Hoda Muthana no longer a citizen of the United States is unconstitutional, and therefore impermissible.
45. If this Court were to decline injunctive relief, Mr. Muthana’s daughter would suffer irreparable harm from the loss of her U.S. citizenship, and the rights and constitutional guarantees that attend that citizenship.
46. Injunctive relief would not substantially injure other interested parties. Mr. Muthana’s daughter’s status as a citizen is guaranteed under the U.S. Constitution. Accordingly, the government’s obligation to respect and preserve her constitutional rights cannot, and should not, be construed as causing injury to other parties or in any way outweighing these inalienable rights.
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47. Public interest is furthered by this Court’s granting of injunctive relief. U.S. citizenship is guaranteed to all individuals born within the United States, as well as those born to United States citizen parents; allowing the U.S. government to unilaterally strip citizens of that right via administrative action, without legally required due process, endangers the rights of all United States birthright citizens and citizens by acquisition.
48. Accordingly, Mr. Muthana, on behalf of his daughter, respectfully requests that this Court grant relief enjoining the U.S. from disputing or rescinding her established citizenship.
b. Count 2: Mr. Muthana, on behalf of his daughter, seeks injunctive relief preventing the United States’ unlawful attempt to rescind her citizenship in violation of the United States Constitution, as she became a United States citizen at the time of her birth in the United States due to her mother’s pending legal residency and prior legal entry into the United States.
49. The Fourteenth Amendment to the U.S. Constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”8
50. The U.S. Supreme Court has held that where an individual was born in the United States, and is therefore an American citizen, “neither the Congress, nor the Executive, nor the judiciary, nor all three in concert” is able to strip away that right.9
51. Prior to Ms. Muthana’s birth, her mother applied for permanent residency status, and on or about July 7, 1994 was granted entry. This was over three months prior to Ms. Muthana’s birth on U.S. soil.
52. Ms. Muthana’s mother’s request for permanent residency and legal admission to the United States was separate and apart from her prior admission to the United States as a family member of
8 U.S. Const. Amend. XIV. 9 Mitsugi Nishikawa v. Dulles, 356 U.S. 129, 138, 78 S. Ct. 612, 618, 2 L. Ed. 2d 659 (1958).
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a diplomat under diplomatic visa. Her application for legal admission status subjected her to the jurisdiction of the laws of the United States. See 8 C.F.R. 264.2; see also Form I-508. Ms. Muthana was therefore the natural child born to a person subject to the laws of the United States as of the date of her birth, rather than the family member of a diplomat.
53. If this Court were to decline injunctive relief, Mr. Muthana’s daughter would suffer irreparable harm from the loss of her U.S. citizenship, and the rights and constitutional guarantees that attend that citizenship.
54. Injunctive relief would not substantially injure other interested parties. Mr. Muthana’s daughter’s status as a citizen is guaranteed under the U.S. Constitution. Accordingly, the government’s obligation to respect and preserve her constitutional rights cannot, and should not, be construed as causing injury to other parties or in any way outweighing these inalienable rights.
55. Public interest is furthered by this Court’s granting of injunctive relief. U.S. citizenship is guaranteed to all individuals born within the United States; allowing the U.S. government to unilaterally strip citizens of that right via unilateral action, without legally required due process, endangers the rights of all United States birthright citizens.
56. Accordingly, Mr. Muthana, on behalf of his daughter, respectfully requests that this Court grant relief enjoining the U.S. from disputing or rescinding her established citizenship.
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c. Count 3: Mr. Muthana, on behalf of his daughter, seeks a declaratory judgment that his daughter has been wrongfully denied due process by the government in its determination that she is not a United States citizen, in violation of the Fifth Amendment.10
57. For the reasons stated in the preceding paragraphs and incorporated herein by reference, Plaintiff seeks declaratory judgment that the United States has failed to provide her with the due process for which she is entitled under the Fifth Amendment to the United States Constitution.
58. The Due Process Clause of the Fifth Amendment prohibits the Federal government from depriving individuals of liberty interests without due process of law. “The requirement of ‘due process’ is not a fair-weather or timid assurance. It must be respected in periods of calm and in times of trouble; it protects aliens as well as citizens.” Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 162, 71 S. Ct. 624, 643, 95 L. Ed. 817, 849 (1951).
59. While passports may be suspended without a pre-suspension hearing, citizenship is a different matter. See Haig v. Agee, 453 U.S. 280, 309 (1981) (holding that passports may be revoked without a pre-deprivation hearing, reasoning that the critical government national security issues warranted pre-hearing deprivation of the right to travel).
60. Unlike the right to travel, “citizenship -- particularly American citizenship, … is ‘one of the most valuable rights in the world today’". Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160, 83 S. Ct. 554, 563, 9 L. Ed. 2d 644, 656 (1963)
61. For such rights, the Due Process Clause “guarantees minimum procedural protections, typically notice and an evidentiary hearing, when the individual is deprived of the benefit.” Kizas
10 This claim for relief is brought by Mr. Muthana on behalf of his daughter, Hoda Muthana, and also has implications for and impacts Mr. Muthana’s grandson. To the extent the actions of Defendants which violate the Fifth Amendment to the Constitution as set out in this claim for relief need to be brought individually on behalf of his grandson, Mr. Muthana hereby asserts those claims here as well.
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v. Webster, 707 F.2d 524, 539 (D.C. Cir. 1983). “When the Government acts to take away the fundamental right of citizenship, the safeguards of the Constitution should be examined with special diligence.” Trop v. Dulles, 356 U.S. 86, 103, 78 S. Ct. 590, 599, 2 L. Ed. 2d 630, 644 (1958).
62. “[T]he deprivation of citizenship is not a weapon that the Government may use to express its displeasure at a citizen's conduct, however reprehensible that conduct may be. As long as a person does not voluntarily renounce or abandon his citizenship, and this petitioner has done neither, [the] fundamental right of citizenship is secure.” Trop, 356 U.S. at 92-93.
63. Even when crimes or other misconduct is alleged, “guilt should be determined in a civilian court of justice where all the protections of the Bill of Rights guard the fairness of the outcome.” Trop, 356 U.S. at 104.
64. In this case, the United States has recognized Ms. Muthana to be a United States citizen by birthright since 2005. That recognition cannot be withdrawn, if at all, without affording Ms. Muthana the due process of law in a federal court, which protects the rights guaranteed in the Fifth Amendment to the Constitution.
65. Through their actions as described in the preceding paragraphs and incorporated herein by reference, Defendants have violated the Procedural Due Process guarantees of the Fifth Amendment.
66. Defendants’ violations of the Fifth Amendment inflict ongoing harm upon Ms. Muthana, as well as her son.
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d. Count 4: Mr. Muthana, on behalf of his daughter, seeks injunctive relief preventing the United States’ unlawful attempt to rescind her citizenship in violation of the United States Constitution, because the United States is equitably estopped from now asserting she has never had citizenship, because it has not given her notice or opportunity to challenge the process, nor did it permit her the opportunity to pursue legal residency as an alternative when she could have done so, had she known of any need.
67. For the reasons stated in the preceding paragraphs and incorporated herein by reference, the United States is equitably estopped from now asserting that Ms. Muthana is not a United States citizen.
68. The doctrine of estoppel requires a showing that: (1) there was a "definite" representation to the party claiming estoppel; (2) the party relied on its adversary's conduct to his detriment; and (3) the reliance on the representation was "reasonable." Graham v. SEC, 222 F.3d 994, 1007, 343 U.S. App. D.C. 57 (D.C. Cir. 2000) (quoting Heckler v. Community Health Servs., 467 U.S. 51, 59, 81 L. Ed. 2d 42, 104 S. Ct. 2218 (1984)).
69. Equitable estoppel is available against the government in the extraordinary circumstances presented here. The case for estoppel against the government requires proof of both the traditional elements of the doctrine as well as "a showing of an injustice . . . and lack of undue damage to the public interest." Hertzberg v. Veneman, 273 F. Supp 2d 67, 83, 2003 U.S. Dist. LEXIS 12830, quoting ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988). A showing of injustice requires a demonstration that the government and/or its agents “engage[d] -- by commission or omission -- in misrepresentation or concealment, or, at least, behave[d] in ways that have or will cause an egregiously unfair result." Grumman Ohio Corp. v. Dole, 776 F.2d 338, 347 (D.C. Cir. 1985) (quoting General Accounting Office v. General Accounting Office Personnel Appeals Board, 225 U.S. App. D.C. 350, 698 F.2d 516, 526 n.57 (D.C. Cir. 1983)).
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70. As set forth in further detail above, the United States, in recognition of Ms. Muthana’s birthright citizenship, granted Ms. Muthana a United States passport in January 2005. Prior to issuing her passport, the United States questioned her eligibility for citizenship by birthright based on her father’s prior diplomatic status, and required Mr. Muthana to provide proof that he was not a diplomat at the time of her birth. He did. See Exhibit A, c. The United States thereafter issued a passport for Ms. Muthana as a United States citizen. The United States subsequently renewed her passport, thereby reaffirming its recognition of her United States citizenship.
71. The United States definitively represented to Plaintiff that Ms. Muthana was a United States citizen when it issued her a passport.
72. Plaintiff and his daughter relied on the representation by the United States that his daughter was a United States citizen, and as a result did not take further action to procure or clarify her status in the United States.
73. Reliance on the issuance of a United States passport, issued by the United States government, was reasonable on the part of Plaintiff and Ms. Muthana.
74. The letter revoking Ms. Muthana’s passport in 2016 does not assert that Mr. Muthana, or his daughter (who was a minor at the time relevant to this claim) acted in bad faith or presented anything but accurate information to the United States.
75. To rely on the United States’ purported reason for claiming Ms. Muthana is not a citizen of the United States, that it did not receive official notice of the end of Mr. Muthana’s diplomatic position until February 1995, creates misrepresentation by omission on the part of the United States, and creates an egregiously unfair result.
76. To the extent that any delay in notifying the United States of the termination of Mr. Muthana’s diplomatic position until February 1995 may bar Ms. Muthana’s claim to birthright
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citizenship, as the United States asserted in 2016 (see Ex. D), the United States was necessarily already aware of those facts at the time that it issued her a U.S. passport in January 2005.11
77. The failure of the United States to raise a specific objection that Mr. Muthana maintained diplomatic status because the United States had not been officially notified of his termination from his diplomatic position until after the time of her birth prevented Ms. Muthana’s parents from applying further for legal residency and eventual citizenship for Ms. Muthana, as they had done for her older siblings, born prior to their father’s loss of diplomatic status. Had Ms. Muthana or her parents known of the need to similarly apply for permanent residency for her, they would have undoubtedly taken the same steps for her as they took for her siblings. Since she and her parents were not made aware of any need to take these steps, they did not take them on her behalf.
78. Therefore, the United States is equitably estopped from now claiming that Mr. Muthana’s daughter was never a United States citizen or that she therefore does not have the rights of United States citizens.
79. If this Court were to decline injunctive relief, Mr. Muthana’s daughter would suffer irreparable harm from the loss of her U.S. citizenship, and the rights and constitutional guarantees that attend that citizenship.
11 As noted above, the letter provided in October 2004 came from the United States Mission to the United Nations, Host Country Affairs Section, and was signed by the Minister Counselor for that Section. Ex. C. The correspondence from the government revoking Ms. Muthana’s passport in 2016 likewise refers to the Host Country Affairs Section of the United States Permanent Mission to the United Nations, but contrary to the earlier representation that termination of Mr. Muthana’s diplomatic position was reflected in the records of the United States Mission as terminating September 1, 1994, the United States stated in 2016 that the Mission’s records indicated the Section was not officially notified of his termination under February 6, 1995. The 2016 letter also recognizes, however, that Mr. Muthana’s diplomatic position ended no later than September 1, 1994. Ex. D.
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80. Injunctive relief would not substantially injure other interested parties. Mr. Muthana’s daughter’s status as a citizen is guaranteed under the U.S. Constitution. Accordingly, the government’s obligation to respect and preserve her constitutional rights cannot, and should not, be construed as causing injury to other parties or in any way outweighing these inalienable rights.
81. Public interest is furthered by this Court’s granting of injunctive relief. U.S. citizenship is guaranteed to all individuals born within the United States; allowing the U.S. government to unilaterally strip citizens of that right via administrative action, without legally required due process, endangers the rights of all United States birthright citizens.
82. Accordingly, Mr. Muthana, on behalf of his daughter, respectfully requests that this Court grant relief enjoining the U.S. from disputing or rescinding her established citizenship, based on equitable estoppel for the reasons set forth above.
e. Count 5: Mr. Muthana, on behalf of his daughter, seeks injunctive relief preventing the United States’ unlawful attempt to administratively rescind her citizenship in violation of the United States Constitution, as the United States is equitably estopped from now asserting she has never had citizenship, because it has not given her notice or opportunity to challenge the process, nor did it permit her the opportunity to pursue legal residency as an alternative when she could have done so, had she known of any need.
83. For the reasons stated in the preceding paragraphs and incorporated herein by reference, the United States is equitably estopped from now asserting that Ms. Muthana is not a United States citizen.
84. The United States granted Ms. Muthana a United States passport and recognized her citizenship in 2005. Prior to issuing her passport, the United States questioned her eligibility for citizenship by birthright based on her father’s prior diplomatic status and required Mr. Muthana to provide proof that he was not a diplomat at the time of her birth. He did. See Exhibit A. The United States thereafter issued a passport for Ms. Muthana as a United States citizen. The United States
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subsequently renewed her passport, thereby reaffirming its recognition of her United States citizenship.
85. There has been no showing or indication that Mr. Muthana, or his daughter (who was a minor at the time relevant to this claim) acted in
f. Count 6: Mr. Muthana, on behalf of his grandson, seeks injunctive relief preventing the United States’ unlawful attempt to administratively rescind his citizenship in violation of the United States Constitution, as he became a United States citizen by acquisition at the time of his birth, due to his mother being a United States citizen at the time of his birth.
86. For the reasons stated above and incorporated herein by reference, Mr. Muthana’s daughter was a United States citizen at the time of her birth.12
87. Mr. Muthana’s grandson, therefore, became a United States citizen by acquisition at the time of his birth. 8 USC § 1401(g).
88. Stripping U.S. citizens of their citizenship is one of the most serious steps the U.S. government can take, and in the case of birthright citizens, is both unconstitutional and impermissible.
89. If this Court were to decline injunctive relief, Mr. Muthana’s daughter would suffer irreparable harm from the loss of her U.S. citizenship, and the rights and constitutional guarantees that attend that citizenship.
90. Injunctive relief would not substantially injure other interested parties. Mr. Muthana’s daughter’s status as a citizen is guaranteed under the U.S. Constitution. Accordingly, the government’s obligation to respect and preserve her constitutional rights cannot, and should not, be construed as causing injury to other parties or in any way outweighing these inalienable rights.
12 U.S. Const. Amend. XIV; Mitsugi Nishikawa v. Dulles, 356 U.S. 129, 138, 78 S. Ct. 612, 618, 2 L. Ed. 2d 659 (1958).
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91. Public interest is furthered by this Court’s granting of injunctive relief. U.S. citizenship is guaranteed to all individuals born within the United States, as well as those born to United States citizen parents; allowing the U.S. government to unilaterally strip citizens of that right via administrative action, without legally required due process, endangers the rights of all United States birthright citizens and citizens by acquisition.
92. Accordingly, Mr. Muthana, on behalf of his daughter, respectfully requests that this Court grant relief enjoining the U.S. from disputing or rescinding her established citizenship.
e. Count 7: Plaintiff Ahmed Ali Muthana, on behalf of his daughter and grandson, seeks a writ of mandamus instructing the United States to uphold the rights of its citizens, and aid in the return of his daughter and grandson to the United States. 93. Plaintiff Ahmed Ali Muthana, on behalf of his daughter and grandson, hereby alleges and incorporates by reference all facts contained in the sections above. 94. Plaintiff’s claims on behalf of his daughter and grandson are clear and certain: the rights of United States citizens to return to the United States, as well as to retain their citizenships, are clearly protected by the United States Constitution. 95. Defendant’s official duty to act is required by the Constitution, its own stated policies, and international law; it has even recognized and promoted this duty in its recent press releases. 96. No other adequate remedy is available beyond those sought here, and both Mr. Muthana’s daughter and grandson will suffer immediate and irreparable harm if they are not permitted their rights as United States citizens to return home. 97. Therefore, while “[t]he remedy of mandamus “is a drastic one, to be invoked only in extraordinary circumstances”,13 mandamus is properly available if: “(1) the plaintiff has a clear
13 Allied Chemical Corp. v. Daiflon, Inc., 449 U.S. 33, 34 (1980). 22

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 23 of 32

right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy

available to plaintiff.”14

98. On behalf of his daughter and grandson, Plaintiff here satisfies all three criteria, and a

request for a writ of mandamus is appropriate. Plaintiff Ahmed Ali Muthana, on behalf of his

daughter and grandson, therefore seeks a writ of mandamus under the authority of 28 U.S.C. §

1361, instructing the United States government to uphold its duties to these two United States

citizens and assist them in returning to the United States.

g. Count 8: As United States Citizens, Ms. Muthana and her minor child have the right to return to the United States under international law, and the United States government has a vested interest in assisting U.S. citizens who flee armed conflict on foreign soil.

99. The preceding paragraphs are incorporated herein by reference.

100.

Ms. Muthana and her young son have succeeded in escaping ISIS-controlled

territory; however, they are still located in an area of Syria which is riddled by conflict and violence.

101.

Ahmed Ali Muthana, as next friend of his daughter and grandson, now reasserts

their desire to return home and for Hoda Muthana to surrender to the United States justice system.

In accordance with their status as United States citizens and their rights under international

humanitarian law, Mr. Muthana requests, on behalf of his daughter and grandson, assistance from

the U.S. government in securing them safe passage out of Syria.

102.

The Fourth Geneva Convention, signed by the United States in 1949 and ratified

in 1955, outlines the conduct that signatory nations are required to adhere to during times of war.15

14 Northern States Power Co. v. U.S. Dep’t of Energy, 128 F.3d 754, 758 (D.C. Cir. 1997) (quoting Council of and for the Blind of Delaware Cty. Valley, Inc. v. Regan, 709 F.2d 1521, 1533 (D.C. Cir. 1983) (en banc)). 15 http://www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf
23

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 24 of 32

103.

Article 2 of that Convention specifies that it “shall apply to all cases of declared

war or of any other armed conflict which may arise between two or more of the High Contracting

Parties, even if the state of war is not recognized by one of them.”16

104.

Since 2011, “fighting in Syria has killed an estimated 465,000 people, injured more

than one million, and forced about 12 million people - or half the country's pre-war population -

from their homes.”17 Although the degree of involvement of each of the parties presently in Syria

has shifted over time, the fact remains that there are still several conflicting international forces at

play within the Syrian border, including Israel, government forces backed by Russia and Iran,

Turkey, Kurdish forces, Syrian rebel groups, and Syrian forces loyal to Assad.18

105.

Over 130 countries have signed the Geneva Convention, including Syria, Iran,

Turkey, Russia and the United States, all of whom have taken part in the Syrian conflict;

accordingly, this conflict falls within the contemplated international scope of the Geneva

Conventions.

106.

In addition to other relevant articles of the Convention, Article 48 of the Fourth

Geneva Convention specifically addresses how aliens in occupied territories are to be treated

during times of conflict, stating that “protected persons who are not nationals of the Power whose

territory is occupied, may avail themselves of the right to leave the territory subject to the

provisions of Article 35, and decisions thereon shall be taken according to the procedure which

the Occupying Power shall establish in accordance with the said article.”19

16 Id. 17 See https://www.aljazeera.com/indepth/interactive/2015/05/syria-country-divided150529144229467.html for a breakdown of where and who is currently occupying Syria. 18 https://www.bloomberg.com/news/articles/2019-01-14/who-s-still-fighting-in-the-syrian-warand-why-quicktake-jqwig5e7. 19 Article 35, in relevant part, states that “all protected persons who may desire to leave the territory at the outset of, or during a conflict, shall be entitled to do so, unless their departure is contrary to
24

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 25 of 32

107.

Mr. Muthana’s daughter and grandson qualify as protected persons under the

definition contained in Article 4 of the Fourth Geneva Convention, which states that “persons

protected by the Convention are those who at a given moment and in any manner whatsoever, find

themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying

Power of which they are not nationals.”20

108.

The United States Supreme Court has previously acknowledged the legitimacy of

invoking the Geneva Convention in order to challenge wartime conduct and sustain fundamental

liberties. See Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 164 L.Ed. 2d 723 (2006)

(recognizing that it is permissible for an alien to invoke the Geneva Conventions in order to

challenge procedures used by military commissions during his criminal trial).

109.

Although Mr. Muthana’s daughter has at times been in the company of ISIS fighters

and present in ISIS-controlled territory, there is no evidence to suggest that she has taken part in

any armed combat or hostilities.

110.

There is no evidence, nor can there conceivably be any evidence, that Mr.

Muthana’s minor grandson, who is less than two years old at the time of the filing of this Complaint,

took part in any armed combat or hostilities.

the national interests of the State. The applications of such persons to leave shall be decided in accordance with regularly established procedures and the decision shall be taken as rapidly as possible…if any such person is refused permission to leave the territory, he shall be entitled to have such refusal reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose.”
25

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 26 of 32

111.

Neither Mr. Muthana’s daughter nor his grandson is a national of Syria, or any of

the parties to the current conflict taking place on Syrian soil, other than the United States; therefore,

they have the right to safely exit the area of conflict and return to their home country.21, 22

112.

On February 4, 2019, the U.S. Department of State published a press release stating

that “the United States calls upon other nations to repatriate and prosecute their citizens detained

by the [Syrian Democratic Forces].”23 Although Mr. Muthana’s daughter and grandson are not

presently detained by the SDF, this demonstrates the United States’ specific policy position on the

repatriation of American citizens who have previously been affiliated with ISIS.

113.

Consistent with the United States’ policy position, stated above, Mr. Muthana’s

daughter remains entirely willing to surrender to the United States Department of Syria upon her

return; however, she requires the assistance of her government in securing her own repatriation

and that of her minor son, in accordance with international law and U.S. policy.

114.

In addition to International law, American citizens have an absolute right to return

to their home country. See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 67, 121 S. Ct. 2053, 2062, 150

L. Ed. 2d 115 (2001) (acknowledging the absolute right of United States citizens to enter its

borders); see also Worthy v. United States, 328 F.2d 386, 394 (5th Cir. 1964) (“We think it is

inherent in the concept of citizenship that the citizen, when absent from the country to which he

owes allegiance, has a right to return, again to set foot on its soil”).

115.

Although this right does not in and of itself confer an obligation on the United States

to do more than refrain from obstructing a citizen’s ability to return, when viewed in conjunction

21 See https://www.npr.org/2019/01/17/686207495/how-strong-is-the-islamic-state-in-syria for an updated overview of the current state of ISIS in Syria (last visited on February 4, 2019). 22 http://www.syrianlawjournal.com/index.php/main-legislation/nationality-law/#l18-1 23 https://www.state.gov/r/pa/prs/ps/2019/02/288735.htm (last visited on February 5, 2019).
26

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 27 of 32

with applicable international humanitarian law and stated U.S. policy, it confers upon the United

States a responsibility proactively preserve the fundamental rights of its citizens.

116.

United States citizens possess the fundamental right to return home, and the Geneva

Convention outlines in great detail the right of aliens to leave an occupied area of armed conflict.

As a party to this treaty, the United States therefore has a vested interest in facilitating its

implementation, particularly where the treaty coincides with the safety of its own citizens and the

preservation of their absolute right to return home.

h. Count 9: Ahmed Ali Muthana is entitled to a declaratory judgment, under the Declaratory Judgment Act, 28 U.S.C. 2201-2202, that he may send money to ensure the survival of his daughter and grandson, while they secure their return to the United States, without incurring liability under § 2339B.

117.

The facts from the foregoing paragraphs are incorporated herein by reference.

118.

Plaintiff Ahmed Ali Muthana respectfully requests a declaration from this Court

that he may send money to his daughter and grandson, in order to ensure their survival, without

committing a violation of § 2339B.

119.

Mr. Muthana has an actual controversy, as required by the Declaratory Judgment

Act, because this case involves a substantial and concrete controversy, touches the legal relations

of the parties with adverse interests, and is subject to specific relief through a declaratory judgment.

See Aetna Life Insurance Company v. Haworth, 300 U.S. 227, 240-41 (1937).

120.

This Complaint satisfies the requirement for an actual controversy because Mr.

Muthana has been informed by the FBI, during his recent communications with them, that sending

money to his daughter and grandson would constitute material support and a violation of 18 U.S.C.

§ 2339B. See Ex. A, Decl. of Ahmed Ali Muthana.

27

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 28 of 32

121.

18 U.S.C. § 2339B prohibits providing material support or resources to designated

terrorist organizations.24, 25 The statute states, in relevant part, that it is unlawful to “knowingly

provide material support or resources to a foreign terrorist organization, or attempt or conspire to

do so…a person must have knowledge that the organization is a designated terrorist

organization…that the organization has engaged or engages in terrorist activity…or that the

organization has engaged or engages in terrorism.”26

122.

The leading case interpreting 18 U.S.C. § 2339B comes from the United States

Supreme Court, in Humanitarian Law Project.27 The plaintiffs in that case were a collective of

advocacy groups that sought to provide the Partiya Karkeran Kurdistan (“PKK”) and the

Liberation Tigers of Tamil Eelam (“LTTE”), both designated terrorist organizations, with training

on how to use humanitarian and international law for peaceful conflict resolution, as well as how

to petition the UN for humanitarian relief. 28 The plaintiffs challenged § 2339B as unconstitutionally vague on its face, under the due process clause of the Fifth Amendment.29 The

Supreme Court ruled against the plaintiffs, finding that those plaintiffs did not concretely

demonstrate the degree to which they might provide material support or resources.30 Specifically,

the Supreme Court held that “with respect to these claims that gradations of fact or charge would

make a difference as to criminal liability, and so adjudication of the reach and constitutionality of

24 18 U.S.C. § 2339B. 25 18 U.S.C. § 2339A is not applicable in this situation because Mr. Muthana seeks only to provide resources to his daughter to help her and his grandson get home safely, and not to aid in a conspiracy to damage or destroy property outside the United States. 26 Id. 27 Holder v. Humanitarian Law Project, 561 U.S. 1 (2010). 28 Id. at 10. 29 Id. at 18. 30 Id. at 25.
28

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 29 of 32

the statute must await a concrete fact situation.”31 The holding in Humanitarian Law left the door

open for future fact situations which may not constitute material support under § 2339B, such as

the one in this instant matter.

123.

In this case, Mr. Muthana seeks to provide his daughter and grandson with

emergency monetary support in order to ensure their survival, until they can return home.

124.

As of January 15, 2019, Ms. Muthana and her son successfully escaped ISIS-

controlled territory in Syria and made their way to Kurdish-controlled lands in northeast Syria,

where they await passage back to the United States.

125.

Ms. Muthana has openly and repeatedly disavowed ISIS, and is focused solely on

returning to the United States with her son, to ensure the safety of her young child. Upon

information and belief, she is further willing to surrender to the United States justice system should

the United States deem that necessary.

126.

Mr. Muthana has cooperated with the instructions given to him by the FBI; however,

at this time he requests a declaratory judgment finding that, based on the facts of this case, he will

not commit a violation of § 2339B by providing support for his daughter and grandson to return

home.

127.

The monetary support Mr. Muthana seeks to provide would solely support his

daughter and his grandson, and would be of no benefit to ISIS, as they are both physically separated

from the group, and are no longer subject to its control.

128.

Holding that Mr. Muthana would violate § 2339B by sending money for his

daughter and grandson, for this limited purpose at a location outside the control of ISIS, would

effectively render criminal any attempts to send money overseas to any individuals who had, at

31 Id. 29

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 30 of 32
any point in their past, had contact with a designated terrorist organization in a different geographic area than where they are when they receive the money at issue. Doing so is inconsistent with the stated intent of § 2339B, which is “…to provide the Federal Government the fullest possible basis, consistent with the Constitution, to prevent persons within the United States, or subject to the jurisdiction of the United States, from providing material support or resources to foreign organizations that engage in terrorist activities." Id. Here, Mr. Muthana is at no risk of providing material support or resources to any foreign terrorist organization. There is no logical way that any funds could be used to engage in any terrorist activities, given the present location of Mr. Muthana’s daughter and grandson outside of ISIS-controlled territory.
IX. CONCLUSION For the reasons set forth above, Plaintiff Ahmed Ali Muthana hereby requests that the United States issue a declaratory judgment finding that he will not be in violation of 2339B if he provides his daughter and grandson with financial support to aid their survival and return to the United States. Plaintiff Ahmed Ali Muthana, as Next Friend of his daughter Hoda Muthana and grandson Minor John Doe, further seeks injunctive relief preventing the United States government from unconstitutionally robbing them of their rights as United States citizens, as well as a writ of mandamus instructing the United States government to uphold its duties to these two United States citizens. Counsel for Plaintiff further respectfully requests this Court find the U.S. government has an obligation to assist in the return of its citizens from areas of armed conflict, based on U.S. law regarding the rights of citizenship, applicable international law, and the United States’ own publically stated policies regarding the repatriation of American citizens. As stated above, upon her return to the United States, Mr. Muthana’s daughter is prepared and willing to surrender to any charges the United States Justice Department finds appropriate and necessary; she simply requires
30

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 31 of 32
the assistance of her government in facilitating that return for herself and her young son Minor John Doe.

Respectfully submitted,

/s/ Charles D. Swift_
Charles D. Swift D.C. ID No. 987353 Texas Bar No. 24091964
cswift@clcma.org Christina A. Jump D.C. ID No. TX151 Texas Bar No. 00795828 cjump@clcma.org Constitutional Law Center for Muslims in America 833 E. Arapaho Rd, Suite 102 Richardson, TX 75081 Phone: (972) 914-2507 Fax: (972) 692-7454

31

Case 1:19-cv-00445 Document 1 Filed 02/21/19 Page 32 of 32
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 Case 1:19-cv-00445-RBW Document 19 Filed 04/26/19 Page 1 of 49

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

_____________________________________

AHMED ALI MUTHANA, individually )

and as next friend of Hoda Muthana

)

and Minor John Doe initials A.M.,

)

)

Plaintiff,

)

)

v.

)

Civil Action No. 1:19-cv-00445-RBW

)

MICHAEL POMPEO, et al.,

)

)

Defendants.

)

_____________________________________)

MOTION TO DISMISS OR, IN THE ALTERNATIVE, FOR PARTIAL SUMMARY JUDGMENT

i

Case 1:19-cv-00445-RBW Document 19 Filed 04/26/19 Page 2 of 49
TABLE OF CONTENTS
Introduction..................................................................................................................................... 1 Background ..................................................................................................................................... 3
A. Legal Background ............................................................................................................... 3 B. Factual Background ............................................................................................................ 5 C. Procedural History .............................................................................................................. 7 Legal Standards............................................................................................................................... 9 A. Federal Rule of Civil Procedure 12(b)(1) ........................................................................... 9 B. Federal Rule of Civil Procedure 12(b)(6) ........................................................................... 9 C. Federal Rule of Civil Procedure 56 .................................................................................... 9 Argument ...................................................................................................................................... 11 A. The Court Should Dismiss All of Plaintiff’s Next-Friend Claims (Counts 1–8) or, in the
Alternative, Grant Summary Judgment to Defendants on Those Claims ......................... 11 1. Plaintiff Has Not Satisfied the Requirements to Proceed as a Next Friend................ 11 2. Muthana Is Not and Was Never a U.S. Citizen .......................................................... 16
a) The Allegations in the Complaint and Exhibits to the Complaint Fail to Establish that Muthana Is a U.S. Citizen—So All of Plaintiff’s Next-Friend Claims Fail .. 17
b) The Attached Department of State Certification and Underlying Records Confirm that Muthana Did Not Acquire U.S. Citizenship at Birth ..................................... 27
3. Plaintiff Has Not Alleged a Cause of Action to Challenge Muthana’s Passport Revocation .................................................................................................................. 31
4. Defendants Did Not Violate Procedural Due Process In Revoking Muthana’s Passport ..................................................................................................................................... 32
5. Courts Lack Authority to Grant Citizenship Claims in Equity................................... 34 6. The United States Does Not Have a Duty to Facilitate Muthana’s Return ................ 36
a) The United States Does Not Have a Duty to Facilitate the Return of Its Citizens from Abroad.......................................................................................................... 36
b) Plaintiff Has Not Adequately Pleaded a Claim for Relief Under Geneva Convention IV 38
B. The Court Should Dismiss Plaintiff’s Personal Claim (Count 9) Because Plaintiff Lacks Standing to Seek Declaratory Relief on That Claim......................................................... 40
Conclusion .................................................................................................................................... 42
ii

Case 1:19-cv-00445-RBW Document 19 Filed 04/26/19 Page 3 of 49
TABLE OF AUTHORITIES
Cases Abdulaziz v. Metro. Dade Cty., 741 F.2d 1328 (11th Cir. 1984) .............................................. 4, 28 Acosta v. Gaffney, 558 F.2d 1153 (3d Cir. 1977) ......................................................................... 37 Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) .................................................... 13, 14, 15 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................. 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 9 Ashwander v. Tenn.Valley Auth., 297 U.S. 288 (1936) ................................................................ 40 Babbitt v. Farm Workers, 442 U.S. 289 (1979)............................................................................ 42 Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) .................................................................... 9 Boos v. Barry, 485 U.S. 312 (1988).............................................................................................. 21 Califano v. Sanders, 430 U.S. 99 (1977) ...................................................................................... 32 Chacoty v. Tillerson, 285 F. Supp. 3d 293 (D.D.C. 2018) ........................................................... 31 Cheney v. U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367 (2004) ................................ 37 Croce v. Bromley Corp., 623 F.2d 1084 (5th Cir. 1980) .............................................................. 12 Davis v. Austin, 492 F. Supp. 273 (N.D. Ga. 1980)...................................................................... 14 Fedorenko v. United States, 449 U.S. 490 (1981) ........................................................................ 34 Flast v. Cohen, 392 U.S. 83 (1968) .............................................................................................. 41 Fornaro v. James, 416 F.3d 63 (D.C. Cir. 2005).................................................................... 37, 38 Haig v. Agee, 453 U.S. 280 (1981) ......................................................................................... 33, 37 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .................................................................................. 39 Hauser v. Moore, 223 F.3d 1316 (11th Cir. 2000) ....................................................................... 14 Hellenic Lines, Ltd v. Moore, 345 F.2d 978 (D.C. Cir. 1965) ...................................................... 24 Hilton v. Guyot, 159 U.S. 113 (1895) ........................................................................................... 23 Hinojosa v. Horn, 896 F.3d 305 (5th Cir. 2018)........................................................................... 32 Historic E. Pequots v. Salazar, 934 F. Supp. 2d 272 (D.C. Cir. 2013) ........................................ 39 Hizam v. Kerry, 747 F.3d 102 (2d Cir. 2014) ............................................................................... 34 Idris v. Obama, 667 F. Supp. 2d 25 (D.D.C. 2009) ...................................................................... 14 In re Baiz, 135 U.S. 403 (1890) .................................................................................................... 28 INS v. Pangilinan, 486 U.S. 875 (1988) ................................................................................. 34, 35 Johnson v. Williams, 699 F. Supp. 2d 159 (D.D.C. 2010)............................................................ 39 Kelso v. U.S. Dep’t of State, 13 F. Supp. 2d 1 (D.D.C. 1998) ...................................................... 34
iii

Case 1:19-cv-00445-RBW Document 19 Filed 04/26/19 Page 4 of 49
Khadr v. United States, 529 F.3d 1112 (D.C. Cir. 2008)................................................................ 9 Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S. 502 (1982) ................................. 12 Logan v. Dupuis, 990 F. Supp. 26 (D.D.C. 1997) ........................................................................ 23 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ................................................................... 40 Medellin v. Texas, 552 U.S. 491 (2008) ....................................................................................... 39 Munaf v. Geren, 553 U.S. 674 (2008)........................................................................................... 38 Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423 (D.C. Cir. 1996) .......................... 41 Nattah v. Bush, 770 F. Supp. 2d 193 (D.D.C. 2011) .................................................................... 39 Neely v. Henkel, 180 U.S. 109 (1901)........................................................................................... 38 Newton v. INS, 736 F.2d 336 (6th Cir. 1984) ............................................................................... 37 Nikoi v. Attorney Gen., 939 F.2d 1065 (D.C. Cir. 1991) .............................................................. 17 Proctor v. District of Columbia, 74 F. Supp. 3d 436 (D.D.C. 2014)............................................ 10 Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237 (1952)........................................... 40, 42 Rahman v. Chertoff, 530 F.3d 622 (7th Cir. 2008) ....................................................................... 37 Raya v. Clinton, 703 F. Supp. 2d 569 (W.D. Va. 2010) ............................................................... 21 Rusk v. Cort, 369 U.S. 367 (1962) ................................................................................................ 32 Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370 (D.C. Cir. 2010) ................................. 41 Settles v. U.S. Parole Comm’n, 429 F.3d 1098 (D.C. Cir. 2005) ................................................. 13 Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996).................................................................................. 4 Tabion v. Mufti, 877 F. Supp. 285 (E.D. Va. 1995)........................................................................ 5 Talavera v. Shah, 638 F.3d 303 (D.C. Cir. 2011)........................................................................... 9 The Schooner Adeline, 13 U.S. 244 (1815) .................................................................................. 23 United States ex rel. Siegel v. Shinnick, 219 F. Supp. 789 (E.D.N.Y. 1963)................................ 38 United States v. Al-Hamdi, 356 F.3d 564 (4th Cir. 2004) ............................................................ 28 United States v. Flores-Montano, 541 U.S. 149 (2004) ............................................................... 37 United States v. Guinand, 688 F. Supp. 774 (D.D.C. 1988)................................................... 25, 26 United States v. Khobragade, 15 F. Supp. 3d 383 (S.D.N.Y. 2014) ...................................... 25, 26 United States v. Philip Morris USA, Inc., 396 F.3d 1190 (D.C. Cir. 2005) ................................. 35 United States v. Wong Kim Ark, 169 U.S. 649 (1898)........................................................ 4, 17, 20 Vargas v. Lambert, 159 F.3d 1161 (9th Cir. 1998) ...................................................................... 14 Vo v. Benov, 447 F.3d 1235 (9th Cir. 2006) ................................................................................. 38 Wash. Legal Found. v. U.S. Sent’g Comm’n, 89 F.3d 897 (D.C. Cir. 1996) ................................ 40 Whitmore v. Arkansas, 495 U.S. 149 (1990) .................................................................... 11, 12, 13
iv

Case 1:19-cv-00445-RBW Document 19 Filed 04/26/19 Page 5 of 49
Worthy v. Herter, 270 F.2d 905 (D.C. Cir. 1959)......................................................................... 37 Xia v. Tillerson, 865 F.3d 643 (D.C. Cir. 2017) ........................................................................... 32
Statutes 8 U.S.C. § 1401............................................................................................................................. 34 8 U.S.C. § 1401(a) ........................................................................................................................ 17 8 U.S.C. § 1503(b) ........................................................................................................................ 31 8 U.S.C. § 1504............................................................................................................................. 33 8 U.S.C. § 1504(a) ........................................................................................................................ 31 18 U.S.C. § 2339B ........................................................................................................................ 40 22 U.S.C. §§ 254a–254e ................................................................................................................. 3 28 U.S.C. § 2242........................................................................................................................... 12 42 U.S.C. § 264............................................................................................................................. 37
Rules Fed. R. Civ. P. 17(c)(1)................................................................................................................. 12 Fed. R. Civ. P. 17(c)(2)................................................................................................................. 12 Fed. R. Civ. P.12(b)(1).................................................................................................. 9, 16, 35, 42 Fed. R. Civ. P. 12(b)(6).......................................................................................................... passim Fed. R. Civ. P. 56 ...................................................................................................................... 9, 10
Treatise 5C Charles Alan Wright, et al., Federal Practice & Procedure § 1366 (3d ed. 2012) .................. 10
Regulations 22 C.F.R. § 51.62(a)(2) ................................................................................................................. 33 22 C.F.R. § 51.70(a)...................................................................................................................... 33
Constitutional Provisions U.S. Const. Art. I, § 8, cl. 4........................................................................................................... 34 U.S. Const. Amend. XIV, § 1 ................................................................................................... 4, 17
Other Authorities Geneva Convention (IV) Relative to the Protection of Civilian Persons in Time of War, 6 U.S.T.
3516........................................................................................................................................... 39 Agreement Between the United Nations and the United States of America Regarding the
Headquarters of the United Nations, 21 U.S.T. 1418 ................................................................. 5 Vienna Convention on Diplomatic Relations, 23 U.S.T. 3227.............................................. passim Vienna Convention on the Law of Treaties, 1155 U.N.T.S. 331.................................................. 23
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INTRODUCTION The Court should dismiss this lawsuit. Most of Plaintiff’s claims (Counts 1–8) depend on the assertion that his daughter, Hoda Muthana (Muthana), is a United States citizen. She is not and never has been a United States citizen. Settled law and contemporaneous records establish this conclusively. The Court can dismiss these claims under either Rule 12 or Rule 56. Plaintiff’s only remaining claim (Count 9), which seeks an impermissible advisory opinion endorsing Plaintiff’s desire to send money to Muthana without risk of criminal liability, should be dismissed as well. This Court does not have jurisdiction to provide that endorsement and there are strong reasons not to do so. Plaintiff brings suit on behalf of Muthana and her minor son, A.M., both of whom Plaintiff alleges are currently detained by Kurdish forces in Syria. Muthana traveled to Syria in 2014 to join the Islamic State of Iraq and Syria (ISIS). Once there, she made her way to ISIS-controlled territory and married an ISIS soldier. After her first husband was killed, Muthana married another ISIS soldier, and gave birth to her son, A.M. In January 2016, the United States revoked Muthana’s U.S. passport—which had been issued in error—on the ground that she was not and never was a U.S. citizen. In a letter stating the grounds for revocation, the Department of State explained that because Muthana’s father (Plaintiff), a former Yemeni diplomat to the United Nations, held diplomatic immunity at the time of Muthana’s birth in 1994, Muthana was not born a U.S. citizen under well-established law. Plaintiff now claims that the United States wrongfully rescinded Muthana’s citizenship when it revoked her passport in 2016 and has a duty to facilitate her and A.M.’s return to the United States. Plaintiff seeks injunctive and declaratory relief on behalf of Muthana and A.M., as well as
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a declaration that he may send money to Muthana without violating 18 U.S.C. § 2339B, the material-support-for-terrorist-organizations statute.
All of Plaintiff’s claims fail. First, the Court lacks jurisdiction over any of Plaintiff’s claims. The Court lacks jurisdiction over Plaintiff’s next-friend claims (Counts 1–8). Plaintiff has sued as a next friend to Muthana, but provides no valid reason why Muthana has not herself brought this action or signed on to the allegations in the complaint. Indeed, the complaint (as well as frequent media reports and interviews) show that Muthana is capable of communicating with counsel, and in such circumstances a suit cannot proceed on a next-friend basis. The complaint also leaves serious doubts about whether Plaintiff and Muthana are aligned in the way that next-friend standing demands. Finally, the Court lacks jurisdiction over Plaintiff’s one claim for an advisory opinion on how the material-support statute would apply based on a hypothetical set of facts (Count 9). Second, Plaintiff fails to state any claim on Counts 1 through 8 because Muthana is not and never has been a U.S. citizen, and her son also is not a U.S. citizen. All of Plaintiffs’ next-friend claims are based on the assertion that Muthana acquired U.S. citizenship at birth. Settled law, however, demonstrates that Plaintiff, a former Yemeni diplomat to the United Nations, enjoyed diplomatic-agent-level immunity at the time of Muthana’s birth. Under Article 43 of the Vienna Convention on Diplomatic Relations, which governs diplomatic immunity in the United States, “[t]he function of a diplomatic agent comes to an end . . . on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end” (emphasis added). Here, the United States was not notified that Plaintiff’s diplomatic status had been terminated through the process designed to implement Article 43 until February 6, 1995, more than three months after Muthana’s birth. The Department of State thus continued to afford Plaintiff
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diplomatic-agent-level immunity at the time Muthana was born. As a result, Muthana was born not subject to the jurisdiction of the United States and did not acquire U.S. citizenship at birth.
This Court can conclude that Muthana did not acquire U.S. citizenship at birth based on the allegations in the complaint. If, however, the Court has any doubt as to whether it can resolve the complaint on Rule 12 grounds, the Court can and should grant summary judgment to Defendants. The controlling Department of State certification and contemporaneous records— including the contemporaneous KARDEX record that recorded Muthana’s birth to indicate that she was a member of Plaintiff’s family and subject to diplomatic immunity—conclusively establish that Plaintiff enjoyed diplomatic-agent-level immunity when Muthana was born, and thus Muthana did not acquire U.S. citizenship at birth.
Third, even if Muthana was born a U.S. citizen (she was not), Plaintiff’s next-friend claims would still fail under Rule 12(b)(6). Plaintiff has not stated a cause of action for passport revocation (Counts 1–6); Defendants did not violate procedural due process in revoking Muthana’s passport (Count 3); courts lack authority to grant citizenship in equity (Counts 4–5); and Plaintiff has failed to adequately plead that the United States has a duty to facilitate Muthana’s return to this country (Counts 7–8).
For these reasons, as further explained below, the Court should dismiss the complaint in its entirety under Rule 12. In the alternative, the Court should grant summary judgment to Defendants on Counts 1 through 8.
BACKGROUND A. Legal Background
The controlling statute on diplomatic immunity is the Diplomatic Relations Act of 1978, 22 U.S.C. §§ 254a–254e, which incorporated the Vienna Convention on Diplomatic Relations,
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done April 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95 (entered into force with respect to the United States Dec. 13, 1972). See Abdulaziz v. Metro. Dade Cty., 741 F.2d 1328, 1330 (11th Cir. 1984). The Vienna Conventionencapsulates accepted practice on diplomatic relations between States on diplomatic privileges and immunities. See Tabion v. Mufti, 73 F.3d 535, 538 (4th Cir. 1996).
The Vienna Convention provides “diplomats with absolute immunity from criminal prosecution and protection from most civil and administrative actions brought in the ‘receiving State,’ i.e., the state where they are stationed.” Id. at 537. The Department of State, the agency that administers and determines diplomatic immunity of foreign diplomats within the United States, uses the phrase “diplomatic-agent-level immunity” to refer to the complete criminal and comprehensive civil and administrative immunity from the jurisdiction of the receiving State that diplomatic agents enjoy under the Vienna Convention. Vienna Convention, art. 31. That immunity is also dispositive of certain issues of citizenship. Under Supreme Court precedent, for example, children born in the United States to parents with diplomatic-agent-level immunity are born not “subject to the jurisdiction” of the United States and thus do not acquire U.S. citizenship at birth. See U.S. Const. amend. XIV, § 1 (citizenship at birth extends to persons born “subject to the jurisdiction” of the United States); United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) (“[t]he Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers”).
Diplomatic privileges and immunities are meant “to ensure the efficient performance of the functions of diplomatic missions as representing States” rather than “to benefit individuals.” Vienna Convention, preamble ¶ 5; see Abdulaziz, 741 F.2d at 1330 (“The courts have recognized
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that diplomatic immunity serves the needs of the foreign sovereign and that the diplomat’s privilege is ‘merely incidental to the benefit conferred on the government he represents.’” (citation omitted)). The Vienna Convention also serves to protect United States diplomatic agents abroad, which is a critical national interest of the United States. Tabion v. Mufti, 877 F. Supp. 285, 293 (E.D. Va. 1995), aff’d 73 F.3d 535 (4th Cir. 1996) (“Because not all countries provide the level of due process to which United States citizens have become accustomed, and because diplomats are particularly vulnerable to exploitation for political purposes, immunity for American diplomats abroad is essential.”).
Under the Agreement Between the United Nations and the United States of America Regarding the Headquarters of the United Nations, June 26 – Nov. 21, 1947, 61 Stat. 3416, and the Convention on Privileges and Immunities of the United Nations, adopted Feb. 13, 1946, United States accession, April 29, 1970, 21 U.S.T. 1418, representatives of permanent missions to the United Nations are entitled to the same privileges and immunities in the United States that the United States accords to foreign diplomats. B. Factual Background
On October 15, 1990, the United Nations notified the U.S. Mission to the United Nations in New York (USUN) that the Republic of Yemen (Yemen) had appointed Plaintiff, Ahmed Ali Muthana, as First Secretary of the Permanent Mission of Yemen to the United Nations. Complaint, ECF No. 1 ¶ 18, Ex. D. USUN receives, on behalf of the United States, official notifications regarding representatives of permanent missions to the United Nations.
In accordance with Section 15 of the United Nations Headquarters Agreement and Article 39 of the Vienna Convention on Diplomatic Relations, the United States thereafter accorded Plaintiff and family members forming his household diplomatic-agent-level immunity. Compl.
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¶ 18, Exs. C, D. Yemen terminated Plaintiff as First Secretary in either June or September 1994, but it is undisputed that the United Nations did not notify USUN of Plaintiff’s termination at that time. Compl. ¶¶ 18, 25, 29, 42, Exs. C, D. In the meantime—before the required notification to USUN occurred—Plaintiff’s daughter, Hoda Muthana, was born in New Jersey on 1994, while Plaintiff and his family, now including the newborn Muthana, continued to enjoy diplomatic-agent-level immunity from the United States. Compl. ¶ 20, Ex. D. On February 6, 1995, the United Nations notified USUN that Yemen had terminated Plaintiff as First Secretary in September 1994. Thus, beginning on February 6, 1995, the United States no longer afforded Plaintiff any privileges and immunities. Compl. ¶ 21, 25, Ex. D. Until then, including at the time Muthana was born, Plaintiff enjoyed diplomatic-agent-level immunity.
Years later, on January 24, 2005, the Department of State issued Muthana a U.S. passport. Compl. ¶ 21, Ex. D. According to Plaintiff, during the process of applying for the passport, Plaintiff provided the Department of State with a letter dated October 18, 2004, from USUN to the Department of Homeland Security Bureau of Citizenship and Immigration Services. Compl. ¶ 21, Ex. C. The letter said that USUN records indicated that Plaintiff had been a member of the Permanent Mission of Yemen to the United Nations from October 15, 1990, to September 1, 1994 and that Plaintiff had enjoyed diplomatic immunity during this time period. Compl. ¶ 21, Ex. C. The letter did not state when USUN was notified of Plaintiff’s termination, which is the critical factor for terminating diplomatic immunity, or when Plaintiffs’ diplomatic-agent-level immunity ended. Compl. Ex. C. The Department of State renewed Muthana’s passport on February 21, 2014. Compl. ¶ 21.
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In November 2014, Muthana departed the United States for Turkey and eventually entered Syria. Id. ¶ 22. After arriving in Syria, Muthana entered territory controlled by the Islamic State of Iraq and Syria (ISIS) and joined ISIS. Id. ¶ 23 n.3.
On January 15, 2016, the Department of State revoked Muthana’s U.S. passport because it determined that it had issued the passport in error and that Muthana was not, and never had been, a U.S. citizen. Id., Ex. D. In a letter sent to Muthana on that date, the Department of State informed Muthana that her passport had been revoked because it had been issued erroneously. The letter informed Muthana that she was not a U.S. citizen because, due to her father’s diplomatic status, she was not subject to the jurisdiction of the United States when she was born. Id. The letter advised her that she had a right to request a hearing within 60 days to challenge the passport revocation under 22 C.F.R. § 51.70, a Department of State regulation that allows a passport bearer to request a hearing “to review the basis for the denial or revocation” of a passport. Id. (“A person whose passport has been . . . revoked . . . may request a hearing.”). Muthana did not challenge the passport revocation, but Plaintiff—who was not the passport bearer—submitted a response stating that Muthana was not in the country and asserting that Muthana was a U.S. citizen. Compl. ¶¶ 28, 29.
After Muthana left the United States, she gave birth to A.M. Id. ¶ 24. On or about December 16, 2018, Kurdish forces in Syria allegedly took custody of Muthana and A.M. Id. ¶¶ 30, 31. C. Procedural History
On February 21, 2019, Plaintiff, individually and as putative next friend of Muthana and A.M., filed this suit. See Compl. Plaintiff seeks injunctive relief barring the United States from rescinding Muthana’s (or A.M.’s) purported U.S. citizenship, id. ¶¶ 39–56, 67–92 (Counts 1, 2, 4,
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5, and 6); a declaratory judgment that the United States denied Muthana due process when it purportedly revoked her alleged U.S. citizenship, id. ¶¶ 57–66 (Count 3); a writ of mandamus requiring the United States to aid in the return of Muthana and A.M. to the United States, id. ¶¶ 93– 116 (Counts 7 and 8); and a declaratory judgment that Plaintiff would not violate 18 U.S.C. § 2339B—which makes it a crime to provide material support or resources to designated foreign terrorist organizations—if he were to provide financial assistance to Muthana, id. ¶¶ 117–28 (Count 9).
The same day that he filed the complaint, Plaintiff moved for an expedited hearing on all nine counts under Federal Rule of Civil Procedure 57. Motion to Expedite Hearing, ECF No. 2; see Fed. R. Civ. P. 57. On February 26, this Court directed the parties to appear “for a hearing on the plaintiff’s Expedited Complaint for Declaratory Judgment, Injunctive Relief and Petition for Writ of Mandamus on March 4, 2019.” Feb. 26, 2019 Minute Order.
On March 4, 2019, the Court held a hearing on Plaintiff’s request for expedited consideration. At the end of the hearing, the Court denied expedited treatment. Mar. 4, 2019 Hearing Transcript at 38:1–11. The Court followed that denial with a written order stating that “the plaintiff has not satisfied his burden to demonstrate irreparable harm” and that “denial of expedited consideration of this case is appropriate without evaluating the remaining factors.” March 11, 2019 Order, ECF No. 18 at 4. The Court further explained that “the plaintiff’s request for expedited consideration rests on ‘[b]are allegations of what is likely to occur[, which] are of no value to the Court.’” Id. (quoting GEO Specialty Chems., 923 F. Supp. 2d at 148) (second and third alterations in original).
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LEGAL STANDARDS A. Federal Rule of Civil Procedure 12(b)(1)
Under Federal Rule of Civil Procedure 12(b)(1), the Court may dismiss a complaint for “lack of subject-matter jurisdiction.” As the party claiming subject-matter jurisdiction, Plaintiff bears the burden of demonstrating that such jurisdiction exists. See Khadr v. United States, 529 F.3d 1112, 1115 (D.C. Cir. 2008). B. Federal Rule of Civil Procedure 12(b)(6)
Under Federal Rule of Civil Procedure 12(b)(6), the Court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” When ruling on a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded facts and allegations in the complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court need not, however, accept a plaintiff’s legal conclusions. Id. “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Thus, “only a complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679 (citing Twombly, 550 U.S. at 556). C. Federal Rule of Civil Procedure 56
Under Federal Rule of Civil Procedure 56, summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling on a motion for summary judgment, “the evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party.” Talavera v. Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). But “only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual
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disputes that are irrelevant or unnecessary will not be counted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Although Defendants believe that dismissal is warranted under Rule 12(b)(1) for lack of subject-matter jurisdiction and under Rule 12(b)(6) for failure to state a claim, Defendants move in the alternative for summary judgment on Counts 1 through 8 of the complaint. A party may move for summary judgment at any time, from the pre-discovery stage until 30 days after the close of discovery, unless a local rule or court order provides otherwise. Fed. R. Civ. P. 56(b). “When the defendant expressly moves for summary judgment in the alternative to a motion to dismiss before discovery has been conducted, and relies upon extra-pleading material, to which the plaintiff has an opportunity to respond, the Court need not issue separate prior notice of the conversion [to summary judgment].” Proctor v. District of Columbia, 74 F. Supp. 3d 436, 447– 48 (D.D.C. 2014) (citations omitted). “If extra-pleading evidence ‘is comprehensive and will enable a rational determination of a summary judgment motion,’ a district court will be more likely to convert to summary judgment, but ‘when it is scanty, incomplete, or inconclusive,’ the district court is more likely to decline to convert to summary judgment and permit further discovery.” Id. at 448 (quoting 5C Charles Alan Wright, et al., Federal Practice & Procedure § 1366 (3d ed. 2012)). Here, because Defendants have included conclusive evidence of the dates the United States afforded Plaintiff diplomatic-agent-level immunity—a Department of State certification and a contemporaneous KARDEX record listing Muthana’s birth and indicating that the Department of State treated Plaintiff and his family as subject to diplomatic immunity at the time of Muthana’s birth—and because Plaintiff will have the opportunity to respond to this motion, the Court can convert this motion to summary judgment without further notice.
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ARGUMENT A. The Court Should Dismiss All of Plaintiff’s Next-Friend Claims (Counts 1–8) or, in
the Alternative, Grant Summary Judgment to Defendants on Those Claims The Court should dismiss all of Plaintiff’s next-friend claims on behalf of Muthana and A.M. (Counts 1–8) for lack of jurisdiction. Dismissal is also appropriate for failure to state a claim upon which relief can be granted. In the alternative, Defendants are entitled to summary judgment on Plaintiff’s next-friend claims because Muthana is not and never has been a U.S. citizen. 1. Plaintiff Has Not Satisfied the Requirements to Proceed as a Next Friend Plaintiff fails to establish that he has standing to sue as next friend of Muthana and A.M. Next-friend standing—which allows a person to file a claim on someone else’s behalf—is “by no means granted automatically to whomever seeks to pursue an action on behalf of another.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990). Consistent with Article III of the Constitution, a litigant who asserts next-friend standing bears the burden of “clearly . . . establish[ing] the propriety of his status and thereby justify[ing] the jurisdiction of the court.” Id. at 164. To establish standing as a next friend, a purported next friend must satisfy “two firmly rooted prerequisites.” Whitmore, 495 U.S. at 163–64. “First, a ‘next friend’ must provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf to prosecute the action.” Id. “Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest.” Id. A next friend does not become a party to the case, “but simply pursues the cause on behalf of the [incompetent or unavailable party], who remains the real party in interest.” Id. at 163. “For that reason, the ‘next friend’ application has been uncommonly granted.” Lehman v. Lycoming Cty. Children’s Servs. Agency, 458 U.S. 502, 523
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(1982); see also Whitmore, 495 U.S. at 164 (“If there were no restriction on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’”).
Here, Plaintiff asserts that next-friend standing “is appropriate because [Muthana and A.M.] are interned in a Kurdish camp in Syria, with limited and inconsistent access to the internet or other communications, and have had difficulty communicating with counsel.” Compl. ¶ 8.
This Court should reject Plaintiff’s request for next-friend standing. At the threshold, Plaintiff does not seek such status based on any recognized category. He has not invoked any applicable statute or rule authorizing his next-friend status. Muthana is not a minor, and Plaintiff has not alleged that she is mentally incompetent. See Fed. R. Civ. P. 17(c)(2) (providing that a “minor or an incompetent person who does not have a duly appointed representative may sue by a next friend”).1 Nor is this a habeas corpus proceeding, where courts have traditionally allowed next friends to appear “on behalf of detained prisoners who are unable, usually because of mental incompetence or inaccessibility, to seek relief themselves.” Whitmore, 495 U.S. at 162. In Whitmore, the Supreme Court noted that—unlike here—next friends are authorized to appear in habeas proceedings pursuant to federal statute, see 28 U.S.C. § 2242 (2010 ed.), and expressly declined to decide whether “a ‘next friend’ may ever invoke the jurisdiction of a federal court absent congressional authorization.” Id. at 164. This Court should not expand the concept of next-
1 A.M., although a minor, does not lack a representative; Muthana, his mother, would be the appropriate party to bring a claim on A.M.’s behalf. See Fed. R. Civ. P. 17(c)(1) (allowing for a guardian to “sue or defend on behalf of a minor or an incompetent person”); see also Croce v. Bromley Corp., 623 F.2d 1084, 1093 (5th Cir. 1980) (“In the instant case the infant was ‘otherwise represented’; the child’s legal guardian, his mother, brought this action on his behalf. Thus, there was no need for the court to appoint a guardian ad litem.”).
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friend standing beyond what courts have traditionally recognized, see, e.g., Al-Aulaqi, 727 F. Supp. 2d 1, 23 (D.D.C. 2010), or beyond what the Federal Rules of Civil Procedure expressly authorize, given the nature of Plaintiff’s suit, which implicates weighty questions of foreign relations, and particularly given the shortcomings in Plaintiff’s allegations supporting next-friend standing.
Even if next-friend standing were available in a non-habeas case where no statute or rule authorizes suit by a next friend, Plaintiff does not satisfy either of Whitmore’s requirements. Regarding Whitmore’s first requirement, Plaintiff has not provided “an adequate explanation . . . why the real party in interest cannot appear on [her] own behalf to prosecute the action.” Whitmore, 495 U.S. at 163. Plaintiff rests his assertion that he should be entitled to sue as his daughter’s next friend on the claim that Muthana has “had difficulty communicating with counsel.” Compl. ¶ 8. But this assertion shows she could have authorized the suit (but has not), and in any event is belied by Plaintiff’s own allegations. Plaintiff acknowledges that both he and his counsel have received “communications” from Muthana, id. ¶ 9, and further acknowledges that Muthana has “repeatedly [been interviewed] by Western news media,” Memo. of Law, ECF No. 9-2 at 22 n.69. Moreover, another attorney, Hassan Shibly, who purports to represent Plaintiff’s family, has stated publicly that he and Muthana have “had many conversations.” Natalie Musumeci, Hoda Muthana’s lawyer: Few people ‘resent ISIS’ as much as she, N.Y. Post (Feb. 21, 2019), https://nypost.com/2019/02/21/hoda-muthanas-lawyer-few-people-resent-isis-as-much-as-her.2 Muthana’s numerous contacts with Plaintiff, members of the media, and other individuals defeat Plaintiff’s assertion of next-friend standing. See Al-Aulaqi, 727 F. Supp. 2d at 19 (first requirement
2 When ruling on a motion to dismiss under Rule 12(b)(1), a court may consider materials outside the pleadings “to assure itself of its own subject-matter jurisdiction.” Settles v. U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir. 2005).
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of Whitmore not met where party on whose behalf next friend sought relief was not “being held incommunicado,” and had “communicated with the outside world on numerous occasions”).
Plaintiff also has not satisfied Whitmore’s second requirement—that “the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate.” 495 U.S. at 163. Although courts have held that parents typically satisfy this requirement, see, e.g., Vargas v. Lambert, 159 F.3d 1161, 1168 (9th Cir. 1998), even where the next friend has a family relationship with the absent party courts still examine whether the “next friend” is acting in accord with the absent party’s wishes.3 “[C]ourts have refused to infer—simply on the basis of a close familial tie—that a putative ‘next friend’ actually represents the absent party’s best interests.” Al-Aulaqi, 727 F. Supp. 2d at 22 (citations omitted).
Here, Plaintiff has not made an adequate showing that he is acting in accord with Muthana’s interests. “A purported ‘next friend’ may not simply speculate as to the best interests of the party on whose behalf he seeks to litigate.” Id. at 20. Plaintiff alleges that Muthana wishes to return to the United States and is ready to face the consequences of her actions—including possible criminal prosecution and incarceration. Compl. ¶ 9. But Muthana’s own past statements raise questions regarding whether Muthana and Plaintiff are aligned on this point. See id. (considering party’s public statements in determining whether party’s putative next friend was aligned with party’s interests). In 2015, Muthana posted a picture of her U.S. passport online, writing, “Bonfire soon,
3 See Idris v. Obama, 667 F. Supp. 2d 25, 29 (D.D.C. 2009) (brother of a Guantanamo Bay detainee could not be said to be acting in the detainee’s “best interests” because he had not met with the detainee since his confinement began); Hauser v. Moore, 223 F.3d 1316, 1322 (11th Cir. 2000) (expressing serious “reservations” about whether a prisoner’s “biological mother, who gave [him] up for adoption,” was dedicated to his best interests rather than being “motivated solely by [her] desires to block imposition of the death penalty”); Davis v. Austin, 492 F. Supp. 273, 276 (N.D. Ga. 1980) (denying next-friend standing to a prisoner’s cousin who had “not visited [the prisoner] in over a year and ha[d] had only two contacts with him during that period”).
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no need for these anymore.” Ellie Hall, Gone Girl: An Interview With An American In ISIS,

Buzzfeed

News

(Apr.

17,

2015),

available

at

https://www.buzzfeednews.com/article/ellievhall/gone-girl-an-interview-with-an-american-in-

isis. And Muthana has admitted she has not been truthful with Plaintiff in the past about her desire

to leave Syria. “It would never cross my mind to come back,” she told a reporter about a previous

request for assistance she had made to Plaintiff. “I wanted to see if he’d help me out during

troubling times. It was just a test. I knew he wouldn’t send me anything anyway.” Id. Although

Muthana has apparently given contradictory statements,4 these points raise serious doubt about

Plaintiff’s plea for next-friend status and confirm that he has not adequately alleged such status.

“[W]here a party’s own views as to his best interests appear to conflict with those of a

putative “next friend,” a court cannot substitute the views of the would-be ‘next friend’ for those

of the absent party, even where the purported ’next friend’” is a loving parent who wants only

what he rationally believes to be in the best interests of his adult child. Al-Aulaqi, 727 F. Supp. 2d

at 22. Given the potentially serious consequences Muthana would face on account of her

association with ISIS if she were to return to the United States, coupled with her past comments

and actions that conflict with the relief Plaintiff now purports to seek on her behalf, Plaintiff has

failed to demonstrate that he is acting in accord with Muthana’s desires and interests.

Based on public reporting, Muthana has been in contact with counsel and could easily have

authorized this litigation through that counsel had she so wanted. Accordingly, the Court should

4 Compare, e.g., Hall, Gone Girl: An Interview With An American In ISIS (picture posted online by Muthana of her U.S. passport online, writing, “Bonfire soon, no need for these anymore”), with Rukmini Callimachi and Alan Yuhas, Alabama Woman Who Joined ISIS Can’t Return Home, U.S. Says, N.Y. Times (Feb. 20, 2019) (Muthana’s counsel Hassan Shibly stating that she “is trying to turn herself in to federal authorities and face consequences for her actions”).
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dismiss Counts 1 through 8 for lack of jurisdiction because Plaintiff has not established next-friend standing. See Fed. R. Civ. P. 12(b)(1).
2. Muthana Is Not and Was Never a U.S. Citizen Plaintiff’s next-friend claims, Counts 1 through 8, all rest on a fundamental and dispositive error—the assertion that Muthana is a U.S. citizen. She is not and never was a U.S. citizen. Muthana’s parents enjoyed diplomatic-agent-level immunity at that time of her birth, meaning that she was born not subject to the jurisdiction of the United States and thus could not and did not acquire U.S. citizenship at birth.5 And because A.M.’s only claim to citizenship rests on his mother (Muthana) being a U.S. citizen, the claims related to A.M. must also be dismissed. See Compl. ¶¶ 86–92 (Count 6). In particular, and as explained below, the Court should dismiss Counts 1 through 8 for failure to state a claim because the allegations in the complaint and the exhibits to the complaint, if taken as true, fail to establish that Muthana is a U.S. citizen. If the Court believes that it cannot conclude that Muthana is not a U.S. citizen solely on the basis of the complaint and exhibits, and believes that it cannot rely on the relevant government records on a motion to dismiss, Defendants move in the alternative for summary judgment on these claims based on the undisputed facts and the attached Department of State certification and contemporaneous underlying official records.
5 Because Muthana and her parents enjoyed diplomatic-agent-level immunity at the time of her birth, the Court need not decide the issue advanced by amicus that Muthana still would not be a U.S. citizen because her parents were not legal permanent residents. See Brief of Amicus Curiae Center for Constitutional Jurisprudence, ECF No. 16. If the Court were to determine that it is necessary to reach that issue notwithstanding the government’s arguments for dismissing Plaintiff’s next-friend claims, however, amicus raises a serious legal question that would merit further briefing.
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a) The Allegations in the Complaint and Exhibits to the Complaint Fail to Establish that Muthana Is a U.S. Citizen—So All of Plaintiff’s Next-Friend Claims Fail
The Fourteenth Amendment to the U.S. Constitution confers citizenship on persons “born or naturalized in the United States, and subject to the jurisdiction thereof.” U.S. Const. amend. XIV, § 1 (emphasis added); see also 8 U.S.C. § 1401(a). The Supreme Court has long held that the phrase “subject to the jurisdiction thereof” excludes from the coverage of the Fourteenth Amendment’s citizenship clause children born in the United States to foreign ministers or diplomatic officers representing foreign nations. Wong Kim Ark, 169 U.S. at 693 (“The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory . . . with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers . . . .”); Nikoi v. Attorney Gen., 939 F.2d 1065, 1066 (D.C. Cir. 1991) (“Because one parent was a foreign official with diplomatic immunity when each child was born, the birth did not confer United States citizenship.”).
It is critical to Plaintiff’s next-friend claims that Plaintiff enjoyed diplomatic-agent-level immunity when Muthana was born. As explained above, the Vienna Convention governs that issue. Article 10 of the Convention requires a sending State to notify the receiving State of “[t]he appointment of members of the mission [and] their arrival.” Vienna Convention, art. 10(1)(a). When someone is appointed to a permanent mission to the United Nations, the individual’s sending State must first notify the United Nations Office of Protocol. Declaration of James B. Donovan (Mar. 3, 2019) ¶ 3 (attached hereto as Exhibit A). Once the United Nations Office of Protocol accepts the accreditation of the individual, it notifies USUN and requests that the United States afford the individual the appropriate privileges and immunities. Id. ¶ 4. Article 39 of the Convention states that “[e]very person entitled to privileges and immunities shall enjoy them from the moment he enters the territory of the receiving State on proceeding to take up his post or, if
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already in its territory, from the moment when his appointment is notified to the Ministry for Foreign Affairs or such other ministry as may be agreed.” Vienna Convention, art. 39(1). Article 37, in turn, extends the privileges and immunities specified in Articles 29 to 36 to “members of the family of a diplomatic agent forming part of his household.” Id. art. 37(2).
In like manner, Article 10 of the Vienna Convention requires a sending State to notify the receiving State of the “final departure or the termination of [members’] functions with the mission.” Vienna Convention, art. 10(1)(a). When someone serving in a permanent mission to the United Nations is terminated, the individual’s sending State must first notify the United Nations Office of Protocol. Donovan Decl. ¶ 9. Once the United Nations Office of Protocol receives a notice of termination of the individual, it notifies USUN. Id. Article 43 of the Convention, in turn, specifies that “[t]he function of a diplomatic agent comes to an end . . . on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end.” Vienna Convention, art. 43(a) (emphasis added).6 Notification from the sending State is the normal method for establishing the date that immunity ends.7 See Raya v. Clinton, 703 F. Supp. 2d 569, 578 (W.D. Va. 2010) (“[T]he Vienna Convention requires sending countries to provide formal notice of a diplomatic agent’s appointment and termination, and specifically states that an agent’s diplomatic functions come to an end on notification of termination by the sending
6 Article 43 further specifies that the function of a diplomatic agent may also come to an end “[o]n notification by the receiving State to the sending State that . . . it refuses to recognize the diplomatic agent as a member of the mission.” Vienna Convention, art. 43(b). 7 Although not relevant to this case, the Vienna Convention allows for a receiving State to terminate privileges and immunities if the receiving State determines that a member of a sending State is no longer employed at the diplomatic mission. See Vienna Convention, art. 43(b) (the function of a diplomatic agent may also come to an end “[o]n notification by the receiving State to the sending State that . . . it refuses to recognize the diplomatic agent as a member of the mission”).
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country.”). If the United States receives a timely notification of termination, immunity then subsists for a reasonable period after the termination date as notified by the foreign government so that the foreign mission member has a reasonable time to depart, unless it is a late notice received more than 30 days after the date of termination. Vienna Convention, art. 39(2) (“When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so . . . .”). That is, if the United States had been properly notified on August 25, 1994, that Plaintiff’s termination date was September 1, 1994, he and his family would have continued to enjoy diplomatic-agent-level privileges and immunities until October 1, 1994. But when the notice of termination is received more than 30 days after the date of termination, the immunities cease on the date of notification. See Id., art. 9(2) (“If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.”); 43(b) (“[t]he function of a diplomatic agent comes to an end . . . on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.”).
Under these principles, Plaintiff’s Counts 1 through 8 must be dismissed because the undisputed facts establish that Muthana did not acquire U.S. citizenship at birth. Plaintiff alleges that he was terminated from his diplomatic position with the Yemeni Mission to the United States “no later than September 1, 1994.” Compl. ¶ 42. It is undisputed that USUN was not formally notified of his termination, however, until February 6, 1995. Id., Ex. D. Thus, under the plain terms of the Vienna Convention, and consistent with the practice of the United States regarding individuals accredited to permanent missions to the United Nations, Plaintiff’s diplomatic status
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ceased on February 6, 1995—the date the receiving State (the United States, through USUN)

received notice of his termination. See Vienna Convention, art. 43 (“The function of a diplomatic

agent comes to an end . . . on notification by the sending State to the receiving State that the

function of the diplomatic agent has come to an end”). In the meantime, Muthana was born in

New Jersey on

1994. Compl. ¶ 20.

Because USUN did not receive timely notification of Plaintiff’s termination, the

Department of State afforded Plaintiff’s family, including Muthana, immunity through the date of

notification, February 6, 1995. When Muthana was born in New Jersey on

1994, she

enjoyed diplomatic-agent-level immunity through her father and, therefore, was born not “subject

to the jurisdiction” of the United States and did not acquire U.S. citizenship at birth. Wong Kim

Ark, 169 U.S. at 693 (“[t]he Fourteenth Amendment affirms the . . . rule of citizenship by birth

within the territory . . . with the exceptions or qualifications . . . of children of foreign sovereigns

or their ministers”). Because Plaintiff’s next-friend claims all rely on Muthana’s purported

acquisition of U.S. citizenship at birth, they all necessarily fail.

This conclusion makes good sense. Relying on the date of notification of termination,

which both accords with the plain language of the Vienna Convention and reflects U.S. practice

regarding members of UN permanent missions and foreign missions to the United States, is critical

to our foreign relations. The Supreme Court has emphasized the overriding importance of “the

concept of reciprocity that governs much of international law” on diplomatic privileges and

immunities, as well as other strong reasons “to protect foreign diplomats in this country”:

Doing so ensures that similar protections will be accorded those that we send abroad to represent the United States, and thus serves our national interest in protecting our own citizens. Recent history is replete with attempts, some unfortunately successful, to harass and harm our ambassadors and other diplomatic officials. These underlying purposes combine to make our national interest in protecting diplomatic personnel powerful indeed.

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Boos v. Barry, 485 U.S. 312, 323–24 (1988). By relying on the date of notification of termination, the United States preserves foreign governments’ control over when their emissaries’ functions and immunity ends, absent notice from the receiving State that ends such recognition under Article 43(b) (normally for bad acts by a member of a foreign mission resulting in expulsion).8 This approach—of giving primacy to notice of termination by the sending State—is critical to preserving the United States’ own ability to control when the immunities granted to our own diplomats serving overseas end. For example, the United States would not want a foreign State to determine—without formal notification from the United States—that one of our mission members is no longer employed by the Embassy or to commence a criminal prosecution based on the foreign State’s own determination of employment (or not) by the United States. See Vienna Convention, preamble (“the purpose of such privileges and immunities is . . . to ensure the efficient performance of the functions of diplomatic missions as representing State”). Relying on the date of notification to determine when diplomatic immunity ends avoids second-guessing and gives the States— through this notice process—control over when diplomatic immunity begins and ends. Under the principles of reciprocity that govern foreign relations, this rule is of paramount importance to the safety and security of U.S. diplomats abroad.
8 See Vienna Convention, art.43(b) (providing that the function of a diplomatic agent comes to an end “on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.“); see also id., art. 9(2) (“If the sending State refuses or fails within a reasonable period to carry out its obligations under paragraph 1 of this Article, the receiving State may refuse to recognize the person concerned as a member of the mission.”); id., art. 9(1) (“The receiving State may at any time and without having to explain its decision, notify the sending State that . . . any member of the diplomatic staff of the mission is persona non grata . . . . In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission”).
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Plaintiff maintains that the date of termination of a diplomatic position—rather than the date of notification of termination—governs diplomatic status. Compl. ¶ 42. As just explained, the law provides otherwise. A foreign diplomat enjoys immunity from the time the receiving State confers such immunity until the time the receiving State terminates it, and, consistent with the Department of State’s routine and usual practice, Plaintiff’s diplomatic-agent-level immunity was in effect until USUN received formal notice of his termination from the U.N. Office of Protocol on February 6, 1994. None of Plaintiffs’ arguments to the contrary has merit.
First, at the March 4, 2019 hearing on Plaintiff’s request for expedited consideration of the complaint, Plaintiff argued that a sending State could misuse the process afforded parties to the Vienna Convention, under which diplomatic immunity ends upon notification to the receiving State, and that the Court should therefore accept Plaintiff’s position that diplomatic immunity ends upon termination. Mar. 4, 2019 Hearing Transcript at 33:25–34:7 (positing that a sending State “could discharge one of the members of their diplomat part[y] and send that person out to commit acts of espionage and sabotage fully cloaked with the deniability that they’re being done on behalf of the country because we discharged them; but with the full knowledge that that person would be able to operate with absolute impunity from the law because they didn’t send a notification”).
Plaintiff’s argument—which is predicated on a signatory purposefully and intentionally violating the Vienna Convention—directly conflicts with the terms of the Vienna Convention and is wildly implausible. The Vienna Convention directs that “[t]he function of a diplomatic agent comes to an end . . . on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end.” Vienna Convention, art. 43 (emphasis added); see also id., art. 43(b) (the function of a diplomatic agent may come to an end “[o]n notification by the receiving State to the sending State that . . . it refuses to recognize the diplomatic agent as a
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member of the mission.”). So Plaintiff’s hypothesized scenario would flout the United States’ own negotiated agreement with other counties to rely on the notification of termination. Logan v. Dupuis, 990 F. Supp. 26, 29 (D.D.C. 1997) (a “treaty is to be interpreted ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.’”) (citing the Vienna Convention on the Law of Treaties, art. 31(1), May 23, 1969, 1155 U.N.T.S. 331).
Plaintiff’s hypothetical is also incongruent with the reasons a State enters into the Vienna Convention in the first place, see Vienna Convention, preamble (that the purpose of the Convention is to “maintain[] . . . international peace and security and “promot[e] . . . friendly relations among nations”), and is contrary to the foundations of international law—comity, mutuality, and reciprocity, see Hilton v. Guyot, 159 U.S. 113, 228 (1895) (recognizing the “that international law is founded upon mutuality and reciprocity”); The Schooner Adeline, 13 U.S. 244, 285 (recognizing “the principles of international law, comity and reciprocity”). Under the Vienna Convention, a sending State is required to provide notice of termination, see Vienna Convention, art. 10(1)(a), and a person enjoying privileges and immunities has a duty “to respect the laws and regulations of the receiving State,” id., art 41(1). If a signatory is prepared to violate the express terms of the Vienna Convention to abuse a receiving State’s grant of diplomatic immunity as posited in Plaintiff’s hypothetical, there is no reason to think a sending State would not further violate the Vienna Convention and use current members of its diplomatic mission to engage in espionage and other bad acts.
And the gambit that Plaintiff’s counsel posits would almost certainly fail. Given that the sending State would be responsible for having failed to provide the notice of termination (in contravention of the Vienna Convention) and that the “former” diplomat’s action would
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presumably be of benefit to the sending State, it seems highly unlikely that anyone would be fooled by the sending State’s chicanery. Moreover, if the receiving State was not aware of the termination—because notice had not been provided—it would be even more likely to attribute the actions of the agent to the sending State. So the sending State would likely suffer the political and diplomatic repercussions of its agent’s misconduct regardless. On top of all of this, the hypothetical ignores the authority of the receiving State to terminate diplomatic privileges by providing notice to the sending State if concerns arise regarding an individual in a diplomatic mission. See Vienna Convention, art. 43(b).
Indeed, because the Convention expressly provides for notice to the sending State or by the receiving State to terminate diplomatic privileges, this hypothetical concern for abuse provides no basis to depart from these express terms of the Convention. Plaintiff asks the Court to depart from the Convention’s plain language and thereby create uncertainty between the United States and signatories to the Vienna Convention. The Court should not do so. See Tabion, 73 F.3d at 537 (“Treaties are contracts between sovereigns, and as such, should be construed to give effect to the intent of the signatories.”). Plaintiff’s position will adversely affect U.S. diplomats abroad and U.S. interests. See Hellenic Lines, Ltd v. Moore, 345 F.2d 978, 980 (D.C. Cir. 1965) (purpose of diplomatic immunity is “to ‘contribute to the development of friendly relations among nations’ and to ‘ensure the efficient performance of the functions of diplomatic missions’”) (citing the Vienna Convention, preamble). As explained above, the Vienna Convention serves to protect the functions of U.S. diplomatic missions and members of U.S. diplomatic missions, and the United States relies on the date of notification of termination to ensure that the diplomatic immunity of U.S. diplomats is not terminated prematurely and without knowledge of the United States in violation of the Vienna Convention.
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Second, in support of Plaintiff’s argument that diplomatic-agent-level immunity “last[s] only as long as the diplomatic position itself,” Plaintiff points to a 2004 letter by Russell F. Graham, a minister counselor at USUN. See Compl., Ex C. Plaintiff alleges that he provided the Department of State with a copy of this letter in support of Muthana’s 2005 passport application. Compl. ¶ 21. The letter, however, is not addressed to Plaintiff or to the Department of State, but rather to the Bureau of Citizenship and Immigration Services, id., Ex. C, a component of the Department of Homeland Security that has no role in either passport issuance or the conferral or termination of diplomatic-agent-level immunity. The letter does not state for what purpose it was issued, and it is unclear how Plaintiff obtained the letter.
In any event, the letter notes two dates: Plaintiff’s date of appointment, October 15, 1990; and date of termination, September 1, 1994. Id. The letter does not purport to state or analyze when the Department of State no longer afforded Plaintiff’s diplomatic privileges, nor does it address the question at issue here: namely, what immunities Plaintiff enjoyed between September 1, 1994, and the date USUN was formally notified of Plaintiff’s termination, February 6, 1995. The letter does not address Muthana or her birth at all. Rather, the letter states, correctly, that diplomatic privileges and immunities existed during Plaintiff’s period of employment and makes no assessment of the period at issue in this suit. The letter, in other words, indicates that Plaintiff enjoyed diplomatic immunity during his period of employment. It does not, however, establish that his immunity ceased prior to the date USUN was notified of his termination.
Third, Plaintiff cites United States v. Khobragade, 15 F. Supp. 3d 383 (S.D.N.Y. 2014), and United States v. Guinand, 688 F. Supp. 774 (D.D.C. 1988), as support for his claim that the date of termination governs immunity. Compl. ¶ 41. Neither case helps him, however, because neither case addresses the distinction between the date that a person is terminated and the date that
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the United States is notified of termination. In Khobragade, the defendant was a member of the Indian permanent mission to the United Nations with diplomatic-agent-level immunity who, after being criminally indicted, departed the United States. 15 F. Supp. 3d at 386. The case does not address the legal significance of the termination date and does not hold that diplomatic immunity under the Vienna Convention ends upon termination. Id.
Nor does Guinand address the date of notification of termination or hold that immunity ceases upon termination rather than notification. It simply states, as a general matter, that U.S. criminal jurisdiction may be exercised “over persons whose status as members of the diplomatic mission has been terminated for acts they committed during the period in which they enjoyed privileges and immunities,” Guinand, 688 F. Supp. at 775.
The entirety of Plaintiff’s next-friend claims rests on a flawed legal position about the time period during which the Department of State afforded Plaintiff diplomatic-agency-level immunity.9 Under settled law, Muthana was born to a father who enjoyed diplomatic-agent-level immunity at the time of her birth and, therefore, was not born “subject to the jurisdiction” of the United States. As a result, she did not acquire U.S. citizenship at birth. Therefore, the Court should dismiss Counts 1 through 8 for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).
9 Plaintiff incorrectly suggest that the immigration status of Basmeh M. Elshayri, Muthana’s mother, is relevant to the question whether Muthana acquired U.S. citizenship at birth. Compl. ¶ 19. As a non-U.S. national member of Plaintiff’s household, Elshayri also enjoyed diplomaticagent-level immunity. Vienna Convention, art. 37(1) (“The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in Articles 29 to 36”). So Elshayri’s purported immigration status is not relevant and does not alter the result—the complaint must be dismissed.
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b) The Attached Department of State Certification and Underlying Records Confirm that Muthana Did Not Acquire U.S. Citizenship at Birth
If Court believes that it cannot conclude that Muthana is not a U.S. citizen solely on the basis of the complaint and exhibits, and it determines that it cannot rely on the official government records included herewith in addressing the motion to dismiss, the Court should grant summary judgment to Defendants on the issue based on the undisputed facts and the attached Department of State certification and underlying records.
Although there is some question whether Plaintiff was terminated from his diplomatic position in June or in September 1994, any dispute on that point is irrelevant to any issue in this case. Plaintiff and Defendants agree that Plaintiff was terminated “no later than September 1, 1994.” Compl. ¶ 42. There is also no dispute that Muthana was born in New Jersey on
1994. Id. ¶ 20. Finally, Plaintiff does not dispute that USUN was not officially notified of Plaintiff’s termination until February 6, 1995. Id., Ex. D.
The attached certification and contemporaneous records from the Department of State confirm that Muthana was born not subject to the jurisdiction of the United States and thus did not acquire U.S. citizenship at birth. The Court can and should grant summary judgment on this basis.
First, the attached Department of State certification—which addresses Plaintiff’s diplomatic status at the time of Muthana’s birth—conclusively establishes that the Department of State still afforded Plaintiff diplomatic-agent-level immunity at the time of Muthana’s birth and that Muthana thus did not acquire U.S. citizenship at birth. Certification of James B. Donovan, Minister-Counselor for Host Country Affairs at USUN (Mar. 1, 2019) (attached hereto as Ex. B). This certification shows: that the United States was not formally notified of Plaintiff’s termination from his diplomatic post until February 6, 1995; that the Muthana family continued to enjoy diplomatic-agent-level immunity until that date; and that Muthana therefore was not born “subject
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to the jurisdiction” of the United States and thus did not acquire U.S. citizenship at birth. Donovan Certification.
Under established law that has been consistent for over a century, when the Department of State certifies the diplomatic status of an individual, “the courts are bound to accept that determination.” Abdulaziz, 741 F.2d at 1339. The “certificate of the secretary of state . . . is the best evidence to prove the diplomatic character of a person.” In re Baiz, 135 U.S. 403, 421 (1890); see also United States v. Al-Hamdi, 356 F.3d 564, 573 (4th Cir. 2004) (“[W]e hold that the State Department’s certification, which is based upon a reasonable interpretation of the Vienna Convention, is conclusive evidence as to the diplomatic status of an individual. Thus, we will not review the State Department’s factual determination that, at the time of his arrest, Al-Hamdi fell outside the immunities of the Vienna Convention.”). Thus, the attached Department of State certification ends the factual inquiry into Plaintiff’s diplomatic status at the time of Muthana’s birth. See Abdulaziz, 741 F.2d at 1331 (“[O]nce the United States Department of State has regularly certified a visitor to this country as having diplomatic status, the courts are bound to accept that determination.”).
Second, although the Department of State’s certification of Plaintiff’s status is dispositive under the law, it is based upon contemporaneous government records that show conclusively that USUN did not receive formal notification of Plaintiff’s termination until February 6, 1995. When an individual comes to work at his or her country’s permanent mission to the United Nations, the sending State sends a notification of appointment to the United Nations Office of Protocol. Donovan Decl. ¶ 3. After accepting the accreditation, the United Nations Office of Protocol then notifies USUN of the appointment. Id. ¶¶ 4, 5. The United Nations uses the same process to notify USUN of a termination. Id. ¶¶ 12–14.
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Contemporaneous records reflecting these processes establish that the United States was not formally notified of Plaintiff’s termination until February 6, 1995. As explained in the attached Department of State declaration, at the time of Plaintiff’s service at the United Nations, USUN maintained its privileges-and-immunities records in what was known as the KARDEX system. Id. ¶¶ 7–11. Under this system, each accredited diplomat had a paper card reflecting relevant information, including the diplomat’s name and place of birth, information about the diplomat’s family members, and dates for the beginning and end of the diplomat’s privileges and immunities. The KARDEX card for Plaintiff, id., Ex. 1, is clearly annotated to record the termination of his diplomatic-agent-level privileges and immunities as February 6, 1995. Id., Ex. 1.
Plaintiff’s card also reflects an annotation recording the birth of Muthana, with her place and date of birth. Id., Ex. 1. This annotation is significant because it indicates that USUN, at the time that it received notification of Muthana’s birth, had not terminated Plaintiff’s privileges and immunities. There would have been no reason to annotate the card to reflect the addition of a new child if Plaintiff was not then enjoying such privileges and immunities. Id. ¶ 19. The annotation thus reflects the Department of State’s view that Muthana, like her family, enjoyed diplomatic immunity and that she was not born subject to the jurisdiction of the United States. The attached Department of State declaration also explains the importance of relying on the date of notification of termination in determining when diplomatic privileges and immunities end: “We rely on the official notification date because anything short of that, such as reliance on hearsay about the status of a diplomat, could erroneously expose an accredited diplomat to the jurisdiction of the United States, when in fact, under applicable international law, he or she would enjoy immunities.” Id. ¶ 14.
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Nothing in Plaintiff’s complaint conflicts with the certification or the underlying

contemporaneous government records or raises any potential dispute on a material fact. The

complaint alleges that Plaintiff—Muthana’s father—served as First Secretary from October 15,

1990, until sometime in 1994. Compl. ¶¶ 18, 25, 42, Ex. D. This is entirely consistent with the

attached certification and underlying records. See Donovan Certification; Donovan Declaration

¶ 18, Ex. 2, Ex. 3. The complaint also does not dispute that USUN was not officially notified of

Plaintiff’s termination until February 6, 1995. Compl. ¶ 21, Ex. D. Again, this is consistent with

the attached certification and records. See Donovan Certification; Donovan Declaration ¶ 18, Ex.

1, Ex. 2, Ex. 3. Accordingly, when Muthana was born on

1994, Compl. ¶ 20, her

father enjoyed diplomatic-agency-level immunity because the United Nations had not yet notified

USUN of his termination and the Department of State continued to update its records system,

KARDEX, showing that the United States still afforded him diplomatic-agency-level immunity.

See Vienna Convention, art. 43 (“The function of a diplomatic agent comes to an end . . . on

notification by the sending State to the receiving State that the function of the diplomatic agent has

come to an end . . . .”). This in turn meant that Muthana was born with diplomatic-agent-level

immunity because she was a member of her father’s household. See Vienna Convention, art. 37(2)

(extending diplomatic immunity to “members of the family of a diplomatic agent forming part of

his household”).

Under these principles, it is clear that Muthana is not and never was a U.S. citizen—and

that none of the relief Plaintiff seeks on her behalf can be granted. Accordingly, Defendants are

entitled to summary judgment on Counts 1 through 8 of the complaint.

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3. Plaintiff Has Not Alleged a Cause of Action to Challenge Muthana’s Passport Revocation
Counts 1 through 6 all rest on the assertion that the Department of State somehow revoked Muthana’s purported citizenship through its 2016 revocation of her passport. Even putting aside that Muthana never had U.S. citizenship, this assertion is mistaken. Counts 1 through 6 should be dismissed for failure to state a claim.
To begin, Plaintiff is incorrect that the Department of State revoked Muthana’s citizenship when it revoked her passport on January 15, 2016. The Department of State did not “revoke” Muthana’s citizenship. Rather, the Department revoked her passport and explained that it had been issued in error because Muthana had never been a U.S. citizen. Compl. ¶ 21, Ex. D. Although an unexpired U.S. passport may be proof of U.S. citizenship, passports “do not confer citizenship; rather they merely provide proof of one’s status as a citizen.” Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018). Moreover, under the relevant statute, “[t]he cancellation” “of any document purporting to show the citizenship status of the person to whom it was issued”—such as a passport—“shall affect only the document and not the citizenship status of the person in whose name the document was issued.” 8 U.S.C. § 1504(a) (emphasis added). So Plaintiff’s claims falter at the threshold because they rest on the erroneous assertion that, by revoking Muthana’s passport, the Department of State somehow revoked her citizenship.
In any event, Plaintiff has not pleaded a cause of action challenging the revocation of Muthana’s passport. Congress has mandated a specific remedy for a person in Muthana’s circumstances—a person whose passport has been revoked on the ground that the person is not a U.S. citizen. But Muthana has made no effort to use that remedy. Under 8 U.S.C. § 1503(b), “[i]f any person who is not within the United States claims a right or privilege as a national of the United States and is denied such right or privilege . . . upon the ground that [s]he is not a national of the
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United States, such person may make application . . . for a certificate of identity.” 8 U.S.C. § 1503(b). This section “provides plaintiffs an adequate avenue to assert . . . citizenship claims” when an individual’s passport has been revoked. Xia v. Tillerson, 865 F.3d 643, 655 (D.C. Cir. 2017). Muthana, however, has not followed this process or even attempted to follow this process, which includes “both agency obligations and a mechanism for judicial enforcement.” Hinojosa v. Horn, 896 F.3d 305, 312 (5th Cir. 2018).10 Indeed, Plaintiff does not allege in Counts 1 through 6 of his complaint that Muthana has taken any of the steps described in 8 U.S.C. § 1503(b) and (c) to seek a “certificate of identity” or to assert her purported claim for U.S. citizenship.
Counts 1 through 6 of the complaint all rest on the erroneous notion that the Department of State revoked Muthana’s citizenship when it revoked her passport. And Plaintiff has not stated a cause of action to challenge Muthana’s passport revocation in any event. Therefore, the Court should dismiss Counts 1 through 6 for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).
4. Defendants Did Not Violate Procedural Due Process In Revoking Muthana’s Passport
In Count 3, Plaintiff alleges that the Department of State violated Muthana’s due-process rights when it revoked her passport. But Plaintiff’s own allegations show that this is wrong.
Indeed, the complaint makes clear that Defendants afforded Muthana due process. “The Constitution’s due process guarantees call for no more than what has been accorded here: a statement of reasons and an opportunity for a prompt postrevocation hearing.” Haig v. Agee, 453
10 In Rusk v. Cort, 369 U.S. 367 (1962), abrogated in part by Califano v. Sanders, 430 U.S. 99 (1977), the Supreme Court allowed the plaintiff, whose passport the Department of State had declined to renew on the grounds he had expatriated himself, to bypass 8 U.S.C. § 1503 and bring an Administrative Procedure Act (APA) claim to challenge the passport denial. Id. at 379–80. But Califano rejected Rusk’s assumption that the APA is a jurisdiction-conferring statute. 430 U.S. at 105.
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U.S. 280, 310 (1981). Defendants revoked Muthana’s passport under 22 C.F.R. § 51.62(a)(2) after determining that the United States was affording Plaintiff diplomatic-agent-level immunity at the time of Muthana’s birth. 22 C.F.R. § 51.62(a)(2) (the Secretary of State may revoke a passport that “was illegally, fraudulently or erroneously obtained from the Department”); see also 8 U.S.C. § 1504 (“The Secretary of State is authorized to cancel any United States passport . . . or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary.”). In the revocation letter, the Department of State informed Muthana of the basis for the revocation (a prior erroneous finding of citizenship) and afforded her an opportunity to challenge the revocation under 22 C.F.R. §§ 51.70–51.74. Compl. ¶ 25, Ex D (“You have a right to a hearing under Sections 51.70 through 51.74 of Title 22 of the U.S. Code of Federal Regulations . . . . Should you desire such a hearing, you must notify this office in writing within 60 days of receipt of this notice.”). Muthana did not use that process, and three years have now passed.
Indeed, Muthana took no steps to contest the Department of State’s revocation of her passport in the first place. Rather, she publicly stated that she no longer needed her U.S. passport. See Hall, Gone Girl: An Interview With An American In ISIS.
Department of State regulations provide that “[a] person whose passport has been . . . revoked . . . may request a hearing to review the basis for the denial, revocation, or cancellation.” 22 C.F.R. § 51.70(a). Here, the Department of State properly notified Muthana of its decision to revoke her passport and of her opportunity to contest the revocation. Compl. Ex. D; see infra A.5 (discussing the passport revocation process). Despite being afforded the opportunity to request a hearing, however, Muthana chose to take no action at all. The government has satisfied its dueprocess obligations. See Haig, 453 U.S. at 309 (“the Government is not required to hold a
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prerevocation hearing” before revoking a passport); Compl. ¶ 59 (recognizing that “passports may be suspended without a pre-suspension hearing”); see also Kelso v. U.S. Dep’t of State, 13 F. Supp. 2d 1, 4–5 (D.D.C. 1998) (“the Fifth Amendment’s Due Process Clause imposes on the Secretary of State nothing more than a requirement that she inform Mr. Kelso why his passport has been revoked and permit him to contest her decision promptly before a hearing officer”).
Defendants provided Muthana due process in the revocation of her passport. Thus, the Court should dismiss Count 3 for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).
5. Courts Lack Authority to Grant Citizenship Claims in Equity In Counts 4 and 5, Plaintiff asks this Court to apply principles of equitable estoppel to bar the United States from asserting that Muthana is not a citizen. Well-established law, however, precludes courts from exercising equitable powers in a manner that would contravene statutory requirements regarding citizenship, which the Constitution entrusts to Congress. See Art. I, § 8, cl. 4 (Congress shall have power . . . [t]o establish a uniform rule of naturalization . . . throughout the United States.”). Congress has explicitly set—by statute—the conditions under which U.S. citizenship is conferred at birth, including for those persons “born in the United States, and subject to the jurisdiction thereof.” 8 U.S.C. § 1401. Once a court determines that a person does not meet the statutory requirements for U.S. citizenship, “the district court has no discretion to ignore the defect and grant citizenship.” Fedorenko v. United States, 449 U.S. 490, 517 (1981) (internal citation omitted). “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 [congressionally imposed] limitations.” INS v. Pangilinan, 486 U.S. 875, 885 (1988); see also Hizam v. Kerry, 747 F.3d 102, 110 (2d Cir. 2014) (finding that the Court could not grant
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citizenship through their equitable powers where the Department of State revoked a passport after determining it was erroneously issued).
Here, however, Plaintiff asks the Court to wield such purported equitable authority—to disregard statute and controlling case law and instead make a determination of citizenship based on claimed “extraordinary circumstances.” Compl. ¶ 69. The Court should reject this request. It is because Plaintiff cannot satisfy the governing requirement—that Muthana have been “subject to the jurisdiction” of the United States at the time of her birth in order to acquire U.S. citizenship— that Plaintiff raises an equitable cause of action. See supra A.3. As noted, neither “the doctrine of estoppel” nor “the invocation of equitable powers” enables this Court “to confer citizenship in violation of [congressionally imposed] limitations.” Pangilinan, 486 U.S. at 885.
Plaintiff also alleges that “[j]urisdiction is further proper under the general equity jurisdiction granted by 28 U.S.C. § 1331(a).” Compl. ¶ 11. But as discussed above, a court cannot use its discretionary authority to overcome a plaintiff’s failure to meet the congressionally imposed conditions for citizenship. See Pangilinan, 486 U.S. at 885. Therefore, this Court lacks general equity jurisdiction under 28 U.S.C. § 1331 to grant the relief sought in Counts 4 and 5. United States v. Philip Morris USA, Inc., 396 F.3d 1190, 1197 (D.C. Cir. 2005) (“We will not expand upon our equitable jurisdiction if, as here, we are restricted by the statutory language, but may only assume broad equitable powers when the statutory or Constitutional grant of power is equally broad.”).
The Court should dismiss Counts 4 and 5 for lack of subject-matter jurisdiction, see Fed. R. Civ. P. 12(b)(1), or, in the alternative, for failure to state a claim, see Fed. R. Civ. P. 12(b)(6).
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6. The United States Does Not Have a Duty to Facilitate Muthana’s Return In Counts 7 and 8, Plaintiff demands that this Court issue a writ of mandamus instructing the United States to bring Muthana and A.M. to the United States and further demands a declaratory judgment that the United States has a duty under international law to facilitate the release and return of Muthana and A.M. to the United States. Compl. ¶¶ 93–119 (Counts 7 and 8).11 Both demands fail. To start, both demands assume that Muthana is a U.S. citizen. As explained above, however, Muthana is not and never was a U.S. citizen. See supra. Next, and as explained below, Plaintiff cites no plainly defined and non-discretionary duty that requires the United States to return a person to the United States, even in cases where the person is a U.S. citizen. Thus, Plaintiff cannot satisfy the grounds for mandamus relief. Finally, and as also explained below, Defendants do not have a duty under international law because the Geneva Convention IV (“GC-IV”) does not apply in this instance. So a declaratory judgment is inappropriate.
a) The United States Does Not Have a Duty to Facilitate the Return of Its Citizens from Abroad
Plaintiff demands that this Court issue a writ of mandamus instructing the United States to bring Muthana and A.M. to the United States. Compl. ¶ 98. Mandamus relief is a “drastic and extraordinary remedy” that is “only to be reserved for extraordinary situations.” Cheney v. U.S.
11 In Count 8, Plaintiff appears to be asking the Court to issue a writ of mandamus that the United States has an obligation under international humanitarian law to facilitate Muthana’s return. But in his Motion for Expedited Hearing, Plaintiff appeared to characterize Count 8, id. ¶¶ 99-116, as also seeking a declaratory judgment. ECF No. 2 at 3 (“Plaintiff further respectfully requests an expedited hearing on his claim seeking declaratory judgment that U.S. government has an obligation to assist in the return of its citizens from areas of armed conflict, based on U.S. law regarding the rights of citizenship, applicable international law, and the United States’ own publically stated policies regarding the repatriation of American citizens.”). For purposes of this motion, Defendants have combined their argument on Plaintiff’s Counts 7 and 8.
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Dist. Court for the Dist. of Columbia, 542 U.S. 367, 380 (2004). The relief afforded by a writ of mandamus cannot be used to “compel or control a duty in the discharge of which by law [a federal officer] is given discretion” and is appropriate only where the petitioner has exhausted all administrative remedies and the defendant official owes petitioner a clear and nondiscretionary duty. Work v. United States ex rel. Rives, 267 U.S. 175, 177–78 (1925). A plaintiff seeking mandamus has the burden to prove that: (1) the defendant has a plainly defined and nondiscretionary duty to do a ministerial act; (2) the plaintiff has a clear right to the relief he is seeking; and (3) the plaintiff has no available, adequate remedy. See Fornaro v. James, 416 F.3d 63, 69 (D.C. Cir. 2005).
Here, Plaintiff cites no authority—and Defendants have found none—that supports Plaintiff’s assertion that the United States must facilitate the return of its citizens. There is no unqualified right to government assistance for a U.S. citizen to return to the United States. That is made clear by the fact that the government may, and routinely does, burden this right. See, e.g., Newton v. INS, 736 F.2d 336, 343 (6th Cir. 1984) (affirming a deportation order of the alien parents of U.S. citizen children—which had the practical effect of removing a citizen from the United States); see also Acosta v. Gaffney, 558 F.2d 1153, 1158 (3d Cir. 1977) (finding children of deportable parents had no right for their parents to remain in the United States). Many federal laws make entering the country more difficult or time-consuming for citizens. The United States can deny or revoke a passport for U.S. citizens on grounds unrelated to citizenship, see generally Haig, 453 U.S. at 280; Worthy v. Herter, 270 F.2d 905, 913 (D.C. Cir. 1959); can conduct lengthy and intrusive searches and inspections of anyone entering the country, see United States v. FloresMontano, 541 U.S. 149, 152–53 (2004); Rahman v. Chertoff, 530 F.3d 622, 624 (7th Cir. 2008); and can impose quarantines, see, e.g., 42 U.S.C. § 264; United States ex rel. Siegel v. Shinnick,
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219 F. Supp. 789, 791 (E.D.N.Y. 1963). The United States can even extradite its citizens to face trial and imprisonment in another country, which could permanently prevent the citizen’s return. See, e.g., Neely v. Henkel, 180 U.S. 109, 125 (1901); Vo v. Benov, 447 F.3d 1235, 1247 (9th Cir. 2006); cf. Munaf v. Geren, 553 U.S. 674, 699–700 (2008) (declining to stop the U.S. military forces from transferring a U.S. citizen to Iraqi criminal custody). These actions can delay, complicate, or render prohibitively expensive or impossible international travel, including one’s return to the United States.
Given these points, Plaintiff has clearly failed to identify the sort of clear duty that would support mandamus relief. Notably, Plaintiff is not challenging an action by the United States to prevent her travel to the United States. Rather, Plaintiff asks this Court to issue the extraordinary writ of mandamus, “instructing the United States government to uphold its duties to these two United States citizens and assist them in returning to the United States.” Compl. ¶ 98 (emphasis added). Such an order is plainly not appropriate—Plaintiff has not demonstrated that Muthana and A.M. have “a clear right” to assistance in returning to the United States or that Defendants have “a clear duty to act” to facilitate their return. Fornaro, 416 F.3d at 69. Moreover, Muthana’s own actions belie any claim for mandamus relief. The circumstances underlying the alleged need for the extraordinary writ—Muthana’s alleged internment by Kurdish forces in Syria—are the result of Muthana’s own decision to travel abroad to join a foreign terrorist organization.
b) Plaintiff Has Not Adequately Pleaded a Claim for Relief Under Geneva Convention IV
Plaintiff suggests that the United States has an obligation to aid Muthana and A.M.’s return under international humanitarian law, specifically the GC-IV, Article 48. Compl. ¶ 106. Article 48 prescribes that “[p]rotected persons who are not nationals of the Power whose territory is occupied, may avail themselves of the right to leave the territory . . . according to the procedure
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which the Occupying Power shall establish.” (Geneva) Convention (IV) Relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. 3365, 75 U.N.T.S. 287, art. 48 (entered into force Oct. 21, 1950, for the United States Feb. 2, 1956).
Plaintiff’s request for relief fails. GC-IV is not self-executing and does not create a judicially enforceable individual right.12 See Medellin v. Texas, 552 U.S. 491, 516 (2008) (holding that a non-self-executing treaty “addresses itself to political, not the judicial department); Nattah v. Bush, 770 F. Supp. 2d 193, 204 (D.D.C. 2011) (“[t]he Geneva Convention does not create a right of action for private individuals to enforce its terms).
Plaintiff has not identified a clear and nondiscretionary duty for Defendants to negotiate with a foreign power and facilitate Muthana’s and A.M.’s travel to the United States. Therefore, the Court should dismiss Counts 7 and 8 for failure to state a claim. See Fed. R. Civ. P. 12(b)(6).13

12 Nor does Article 48 of GC-IV apply to the conflict against ISIS. For example, because Plaintiff

asserts that Muthana and A.M. are currently under the authority of a non-State armed group (i.e.,

the Syrian Defense forces), Mem. of Law at 1, it is unclear what international armed conflict, i.e.,

“clash between nations,” Hamdan v. Rumsfeld, 548 U.S. 557, 630 (2006), Muthana and A.M. are

held as part of to which Article 48 would apply. See DoD Law of War Manual § 3.3.1 (June 2015,

Updated Dec. 2016) (“[A] state of war can exist when States are not on opposite sides of the

conflict. These other types of conflict are described as ‘not of an international character’ or ‘non-

international

armed

conflict’”),

available

at:

http://ogc.osd.mil/images/law_war_manual_december_16.pdf; § 17.2 (“[I]n the 1949 Geneva

Conventions, only Common Article 3 applies to non-international armed conflict.”). Also, the

United States is not an Occupying Power to which the obligations in Article 48 are addressed.

13 In addition to the points already made, the Court also lacks subject-matter jurisdiction because the United States has not waived sovereign immunity. Plaintiff has failed to point to any statute waiving sovereign immunity over Counts 1 through 8. “The doctrine of sovereign immunity . . . bars suits against the United States unless immunity specifically is waived by statute.” Johnson v. Williams, 699 F. Supp. 2d 159, 165 (D.D.C. 2010). First, Plaintiff alleges that this Court has jurisdiction over Counts 1 through 6 solely on the basis of 28 U.S.C. § 1331, Compl. ¶ 11 (seeking a declaratory judgment), but Plaintiff fails to allege any statute that waives sovereign immunity (or, for that matter, that creates a cause of action over which the Court could exercise its federalquestion jurisdiction if there were a waiver of sovereign immunity). See Historic E. Pequots v. Salazar, 934 F. Supp. 2d 272, 282 n.10 (D.C. Cir. 2013) (noting that section 1331 merely confers

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B. The Court Should Dismiss Plaintiff’s Personal Claim (Count 9) Because Plaintiff Lacks Standing to Seek Declaratory Relief on That Claim In Count 9, Plaintiff requests that this Court grant him a declaratory judgment that certain
potential future conduct will not violate 18 U.S.C. § 2339B. Compl. ¶¶ 117–28. The Court should dismiss this claim as well.
First, Plaintiff has not established standing on this claim. To seek a declaratory judgment, a party must establish Article III standing. See Pub. Serv. Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 242 (1952). Count 9, however, is based on a hypothetical set of necessarily incomplete facts and on outright speculation. Plaintiff claims that Muthana is no longer a member of ISIS, has ceased support for ISIS, and would use any money Plaintiff provided her to travel, Compl. ¶¶ 123–27, but provides no support whatsoever for any of these assertions. Such speculation is insufficient to establish standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–61 (1992) (“the plaintiff must have suffered an injury in fact . . . not conjectural or hypothetical”).
Second, Plaintiff improperly seeks an advisory opinion. Any declaratory judgment would be based on hypothetical facts regarding unknowable conduct, events, and matters of intent. See Ashwander v. Tenn.Valley Auth., 297 U.S. 288, 325 (1936) (the “controversy” must necessarily be “of a justiciable nature, thus excluding an advisory decree upon a hypothetical state of facts”). Plaintiff hypothesizes that Muthana is no longer a member of ISIS or engaging in terrorist activities in support of ISIS, Compl. ¶ 125, and asks this Court to accept this allegation as true and bless his
on district courts subject-matter jurisdiction over certain federal causes of action; but does not waive sovereign immunity.). Second, Plaintiff alleges that this Court has jurisdiction over Counts 7 and 8 on the basis of 28 U.S.C. § 1361, Compl. ¶ 13 (seeking a writ of mandamus), but Plaintiff has not pleaded that the United States has an affirmative duty to Plaintiff. See Wash. Legal Found. v. U.S. Sent’g Comm’n, 89 F.3d 897, 901 (D.C. Cir. 1996) (“It is well settled,” however, that section 1361 “does not by itself waive sovereign immunity.”). At the least, Plaintiff should be required to address this failure of pleading.
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providing support to her based on that hypothetical state of affairs, id. ¶¶ 126–28. But the Court does not know, and cannot know, if these allegations are true or would be true in the future. See Nat’l Treasury Emps. Union v. United States, 101 F.3d 1423, 1431 (D.C. Cir. 1996) (holding that the case was not “fit[] for judicial review” because the facts upon which the case’s resolution depended were not “fully crystalized”) (citation omitted)). This Court cannot provide the advisory opinion that Plaintiff seeks. See Schuler v. PricewaterhouseCoopers, LLP, 595 F.3d 370, 377 (D.C. Cir. 2010) (“a federal court does not have jurisdiction to issue an advisory opinion”) (citing Flast v. Cohen, 392 U.S. 83, 95 (1968) (“no justiciable controversy is presented . . . when the parties are asking for an advisory opinion”)).
Indeed, Plaintiff asks this Court to speculate on the application of federal law to future conduct without an investigation (a thorough gathering of the actual facts) or a charging determination (based on a thorough review of the facts and their application to law) and to, thereby, co-opt the exercise of prosecutorial judgment and discretion by the Executive Branch. Moreover, Plaintiff asks the Court to provide the sort of advice that individuals seek from attorneys every day—advice on whether their conduct is lawful or places them at risk of prosecution. This situation is no different than a taxpayer who would like a court to tell him in advance whether the latest tax shelter that his tax advisor is promoting would actually be lawful before he uses it. Granting Plaintiff’s request for an advisory opinion here would be just as improper as ruling on a tax shelter in advance.
Plaintiff also does not allege a constitutional right to transfer money abroad to an adult child. Plaintiff’s claim therefore falls outside the narrow category of pre-enforcement challenges that may be brought where a plaintiff alleges “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a
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Case 1:19-cv-00445-RBW Document 19 Filed 04/26/19 Page 47 of 49 credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) (emphasis added). Plaintiff has not established that he can bring Count 9, and the Court cannot grant declaratory relief on that Count. See Wycoff Co., 344 U.S. at 242 (declaratory-judgment statute held constitutional “only by interpreting it to confine the declaratory remedy within conventional ‘case or controversy limits’”).
Therefore, the Court should dismiss Count 9 for lack of subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1).
CONCLUSION This Court should dismiss Plaintiff’s claims brought as a next friend (Counts 1–8) for lack of jurisdiction or for failure to state a claim. In the alternative, the Court should grant summary judgment to Defendants on Counts 1 through 8 because Muthana is not and never was a U.S. citizen. And this Court should dismiss Plaintiff’s claim brought on his own behalf (Count 9) for lack of jurisdiction.
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April 26, 2019

Respectfully submitted,
JOSEPH H. HUNT Assistant Attorney General
SCOTT G. STEWART Deputy Assistant Attorney General
AUGUST E. FLENTJE Special Counsel
CHRISTOPHER A. BATES Senior Counsel
WILLIAM C. PEACHEY Director
EDWARD S. WHITE Senior Litigation Counsel
/s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. N.H. Bar Identification No. 15311 Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-4848 E-mail: joseph.f.carilli2@usdoj.gov
Attorneys for Defendants

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CERTIFICATE OF SERVICE
I hereby certify that on April 26, 2019, the foregoing was filed electronically. Notice of
this filing will be sent by e-mail to all parties by operation of the Court’s electronic filing system.
Parties may access this filing through the Court’s system.
/s/ Joseph F. Carilli, Jr. JOSEPH F. CARILLI, JR. N.H. Bar Identification No. 15311 Trial Attorney United States Department of Justice Civil Division Office of Immigration Litigation District Court Section P.O. Box 868, Ben Franklin Station Washington, D.C. 20044 Telephone: (202) 616-4848 E-mail: joseph.f.carilli2@usdoj.gov
Attorney for Defendants

 
 Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 1 of 52

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AHMED ALI MUTHANA, individually, and as next friend of Hoda Muthana and Minor John Doe [initials A.M.]
Plaintiff/Petitioner, vs.
Michael Pompeo, in his official capacity as Secretary of the Department of State, Donald J. Trump, in his official capacity as President of the United States; and William Pelham Barr in his official capacity as Attorney General.
Defendants/Respondents.

Cause No. 1:19-cv-00445 Judge: Reggie B. Walton CIVIL ACTION

PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS OR IN THE
ALTERNATIVE MOTION FOR PARTIAL SUMMARY JUDGMENT
/s/_Charles D. Swift
Charles D. Swift D.C. ID No. 987353 Texas Bar No. 24091964
cswift@clcma.org Christina A. Jump D.C. ID No. TX151 Texas Bar No. 00795828 cjump@clcma.org Constitutional Law Center for Muslims in America 833 E. Arapaho Rd, Suite 102 Richardson, TX 75081 Phone: (972) 914-2507 Fax: (972) 692-7454
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TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................. 1 II. BRIEF FACTUAL SUMMARY .......................................................................................... 2 III. RELEVANT LEGAL STANDARDS................................................................................... 5
A. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(1)......................................... 6 B. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6)......................................... 7 C. Standard Under Federal Rule of Civil Procedure 56 .................................................................. 8 IV. NEXT FRIEND STATUS IS APPROPRIATE HERE .................................................... 10 A. Standard for Need and Identifying an Appropriate Next Friend............................................. 10 B. Next Friend Standing May Be Invoked In General Civil Litigation ........................................ 11 C. Plaintiff Demonstrates Appropriate Grounds for Next Friend Status in This Case............... 12 V. MS. MUTHANA IS ENTITLED TO DECLARATORY RELIEF BASED ON THE DEPARTMENT OF STATE PREVIOUSLY ISSUING HER TWO PASSPORTS. ........... 17 VI. AS A UNITED STATES CITIZEN, MS. MUTHANA IS ENTITLED TO RETURN TO THE UNITED STATES EVEN WITHOUT A PASSPORT ........................................... 23 VII.IN THE ALTERNATIVE, PLAINTIFF SEEKS LEAVE TO AMEND TO ADDRESS § 1503 IN AN AMENDED COMLAINT. ANY SUCH AMENDMENT WOULD BE IN THE INTERESTS OF JUSTICE AND NOT FUTILE. .......................................................... 29 A. Legal Standard .............................................................................................................................. 29 B. There is No Compelling Reason to Deny Leave to Amend Here .............................................. 30
a. Diplomatic Immunity Did Not Apply to Plaintiff at the Time of Ms. Muthana’s Birth. .............. 36 b. This Court, and Plaintiff, are Not Bound to Accept the Determination of the State Department on Immunity in this Situation. ............................................................................................................. 38 VIII. DEFENDANTS ARE PREVENTED BY ESTOPPEL FROM NOW DISPUTING MS. MUTHANA’S CITIZENSHIP........................................................................................... 39 IX. PLAINTIFF AHMED MUTHANA PROPERLY BRINGS A CLAIM SEEKING DECLARATORY JUDGMENT AS TO MATERIAL SUPPORT........................................ 42 A. Defendants Erroneously Dispute Plaintiff’s Claims While Asking for Dismissal. .................. 43 B. There Exists a Live Controversy. ................................................................................................ 44 C. Plaintiff’s Request Relates Directly to Ms. Muthana’s Constitutional Right to Return. ....... 45
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TABLE OF AUTHORITIES
U.S. SUPREME COURT CASES Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986) .............................................................. 9, 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ........................................................................................... 8 Califano v. Sanders, 430 U.S. 99 (1977) ................................................................................ 28, 29 Conley v. Gibson, 355 U.S. 41 (1957) ............................................................................................ 7 Deshaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989) ......................... 24 Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205 (1996)........................................ 30 Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962) ........................................................... 30 Hamdan v. Rumsfeld, 548 U.S. 557 (2006) .................................................................................. 26 Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163 (1993) ........... 6 McCarthy v. Madigan, 503 U.S. 140 (1992) ................................................................................ 35 Reid v. Covert, 354 U.S. 1 (1957) ................................................................................................ 23 Scheuer v. Rhodes, 416 U.S. 232 (1974) .................................................................................... 6, 7 Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001) ........................................................................... 23 Whitmore v. Arkansas, 495 U.S. 149 (1990) .......................................................................... 11, 12
CIRCUIT AND DISTRICT COURT CASES Abigail Alliance for Better Access to Dev. Drugs v. McClellan, 2004 U.S. Dist. LEXIS 29594
(D.D.C. Aug. 30, 2004) at *17 .................................................................................................. 33 ACLU Found. of S. Cal. v. Barr, 952 F.2d 457 (D.C. Cir. 1991)................................................... 7 ACLU Found. v. Mattis, 286 F. Supp. 3d 53 (D.D.C. 2017)........................................................ 14 Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70 (D.D.C. 2016)................. 12, 13, 16 Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010) ......................................................... 13, 23 Ali v. Dist. Dir., 743 Fed. Appx. 354 (11th Cir. 2018).................................................................. 38 Americable Int’l v. Department of Navy, 129 F.3d 1271 (D.C. Cir. 1997).................................. 10 Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002).............................................................. 34 Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996) ............................................... 30 Avocados Plus Inc. v. Veneman, 370 F.3d 1243 (D.C. Cir. 2004)............................................... 35 Banchong v. Kane, 2009 U.S. Dist. LEXIS 127134 (D. Ariz. Dec. 23, 2009)............................. 20 Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004) ............................................................................ 6 Bronner v. Duggan, 324 F.R.D. 285 (D.D.C. 2018) ..................................................................... 32 Brown v. FBI, 744 F. Supp. 2d 120 (D.D.C. 2010)...................................................................... 31 Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002) ..................................................................... 7 *Chacoty v. Tillerson, 285 F. Supp. 3d 293 (D.D.C. 2018) ............................................... 18, 22, 29 Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d. 18 (D.D.C. 2000) .............................. 34
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Communications Workers of America v. American Tel. & Tel. Co., 309 U.S. App. D.C. 170, 40 F.3d 426 (D.C. Cir. 1994) ......................................................................................................... 34
Doe v. Bush, 2006 U.S. Dist. LEXIS 79175 (D.D.C. October 31, 2006)..................................... 11 Dove v. Wash. Metro. Area Transit Auth., 221 F.R.D. 246 (D.D.C. 2004) ................................. 31 Edwards v. Bryson, 884 F. Supp. 2d 202 (E.D. Pa. 2012)............................................................ 19 Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338 (D.C. Cir. 2003)........................... 6, 7 Estate of Gaither v. District of Columbia, 272 F.R.D. 248 (D.D.C. 2011) .................................. 31 Estate of Gaither v. District of Columbia, 655 F. Supp. 2d 69 (D.D.C. 2009)............................... 9 First Chicago Int’l v. United Exch. Co., 836 F.2d 1375 (D.C. Cir. 1988).................................... 10 Foreman v. Heineman, 240 F.R.D. 456 (D. Neb. 2007) ............................................................... 12 Graham v. SEC, 222 F.3d 994 (D.C. Cir. 2000)........................................................................... 39 Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999) ............................................................... 30 Heller v. District of Columbia, No. 08-1289, 2013 U.S. Dist. LEXIS 38833, at *8 (D.D.C. Mar.
20, 2013).................................................................................................................................... 31 Hertzberg v. Veneman, 273 F. Supp 2d 67................................................................................... 39 In re Vitamins Antitrust Litigation, 217 F.R.D. 30 (D.D.C. 2003)............................................... 30 Inc. v. Sanders, 860 F.2d 1104 (D.C. Cir. 1988) .......................................................................... 39 Keil v. Triveline, 661 F.3d 981 (8th Cir. 2011) ............................................................................ 19 Laningham v. U.S. Navy, 813 F.2d 1236 (D.C. Cir. 1987) ............................................................ 9 Latif v. Holder, 969 F. Supp. 2d 1293 (D. Or. 2003) .................................................................. 24 Lempert v. Rice, 956 F. Supp. 2d 17 (D.D.C. 2013) ...................................................................... 6 Magnuson v. Baker, 911 F.2d 330 (9th Cir. 1990) ........................................................... 19, 20, 37 Matter of Villanueva, Interim Decision #2968 (BIA 1984) ............................................. 18, 19, 20 Maydak v. United States DOJ, 254, F. Supp. 2d 23 (D.D.C. 2003) ............................................... 9 Mohamed v. Holder, 995 F. Supp. 2d 520 (D. Or. 2014) ....................................................... 24, 25 Momenian v. Davidson, 878 F.3d 381 (D.C. Cir. 2017) ................................................................ 8 Muhammad v. United States, 300 F. Supp. 3d 257 (D.D.C. 2018) ................................................ 8 Nattah v. Bush, 770 F. Supp. 2d 193 (D.D.C. 2001) ..................................................................... 6 Northland Capital Corp., v. Silver, 1983 U.S. Dist. LEXIS 18115, *14 (D.D.C. March 30, 1983)
..................................................................................................................................................... 9 Patton Boggs LLP v. Chevron Corp., 683 F.3d 397 (D.C. Cir. 2012)............................................ 8 Polsby v. Thompson, 201 F. Supp. 2d 45 (D.D.C. 2002) ............................................................. 29 Randolph-Sheppard Vendors of America v. Weinberger, 254 U.S. App. D.C. 45, 795 F.2d 90,
105 (D.C. Cir. 1986).................................................................................................................. 33 Raya v. Clinton, No. 09-cv-00169-GEC....................................................................................... 38 Samirah v. Holder, 627 F.3d 652 (7th Cir. 2010) ......................................................................... 28 Settles v. U.S. Parole Comm'n, 429 F.3d 1098 (D.C. Cir. 2005) ................................................... 7 Tabb v. District of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007).............................................. 10 Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C. Cir. 1987)........................................... 9 United States v. Clarke, 628 F. Supp. 2d 15 (D.D.C. 2009)......................................................... 20
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Wilson v. District of Columbia, 269 F.R.D. 8 (D.D.C. 2010) ........................................................ 6 Worthy v. United States, 328 F.2d 386 (5th Cir. 1964)................................................................ 23 *Xia v. Tillerson, 865 F.3d 643 (D.C. Cir. 2017).................................................................... passim STATUTES 18 U.S.C. § 2339B .......................................................................................................................... 2 22 U.S.C. § 2705..................................................................................................................... 19, 20 8 U.S.C § 1453.............................................................................................................................. 21 8 U.S.C. § 1503...................................................................................................................... passim 8 U.S.C. § 1504............................................................................................................................. 21 8 U.S.C. §1451........................................................................................................................ 21, 36 RULES Doe v. Mattis, 889 F.3d 745 (D.C. Cir. 2018) .............................................................................. 27 Fed. R. Civ. P. 12(b)(6).......................................................................................................... passim Fed. R. Civ. P. 12(b)1 ............................................................................................................ passim Fed. R. Civ. P. 17(c)(2)................................................................................................................. 11 Fed. R. Civ. P. 56 .................................................................................................................... 2, 8, 9 Fed. R. Civ. Pro. 15(a) .................................................................................................................. 29 CONSTITUTIONAL PROVISIONS U.S. Const. amend. XIV ......................................................................................................... 22, 23 U.S. Const. Amend. XIV .............................................................................................................. 23
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I. INTRODUCTION Plaintiff Ahmed Ali Muthana is a naturalized United States citizen. He is also the father of Hoda Muthana, and the grandfather of Minor John Doe. He brings this action on his own behalf for declaratory judgment, and as proper Next Friend of Hoda Muthana and Minor John Doe seeking declaratory, injunctive and mandamus relief. Plaintiff Muthana’s U.S.-born daughter and his grandson are currently in a precarious position by way of their present location in Camp Roj in Syria. The United States has begun its withdrawal of U.S. forces from the Syrian conflict.1 Upon withdrawal, the ability of the United States to obtain military cooperation from the Syrian Democratic forces, with which they have been previously aligned, will be greatly diminished if even possible. As set forth further in Plaintiff’s Complaint and below, the failure of the United States to use reasonable efforts to facilitate the return of Ms. Muthana and her son as it is obligated to do under both the Constitution and the Fourth Geneva Convention will cause immediate and irreparable harm by jeopardizing their ability in the future to return to the United States. Of greater urgency, as reflected in the Declaration of Ahmed Muthana, attached to this Response in Opposition as Exhibit A, the health of Mr. Muthana’s young grandson is declining, and he is at increasing risk of serious health decline, up to and including death, the longer he is prevented by the actions of Defendants from leaving his current conditions. After both President Trump and Secretary of State Mike Pompeo specifically declared Hoda Muthana not to be a citizen of the United States, or entitled to become one or to return at any time, Plaintiff filed this suit. Plaintiff seeks declaratory relief recognizing that Ms. Muthana remains a citizen of the United States, that her son is eligible for United States citizenship, and that
1 “The Planned U.S. Troop Withdrawal from Syria: Here’s the Latest,” The New York Times, January 16, 2019 (https://www.nytimes.com/2019/01/16/world/middleeast/syria-us-troops-timeline.html) (last accessed January 20, 2019).
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Mr. Muthana will not violate 18 U.S.C. § 2339B{ TA \l "18 U.S.C. § 2339B" \s "18 U.S.C. § 2339B" \c 2 } by helping provide what his daughter and grandson need to survive until they reach the United States; Plaintiff also seeks an order in mandamus instructing the United States to use reasonable good faith efforts to assist in the return travel of Hoda Muthana, along with her minor child, and in the alternative that the Department of State issue a certificate of identity for Ms. Muthana. Defendants now seek dismissal of all claims in this matter by way of a single motion brought under Fed. R. Civ. P. 12(b)(1){ TA \l "Fed. R. Civ. P. 12(b)1" \s "Fed. R. Civ. P. 12(b)1" \c 4 }, Fed. R. Civ. P. 12(b)(6){ TA \l "Fed. R. Civ. P. 12(b)(6)" \s "Fed. R. Civ. P. 12(b)(6)" \c 4 } and Fed. R. Civ. P. 56{ TA \l "Fed. R. Civ. P. 56" \s "Fed. R. Civ. P. 56" \c 4 }. For the reasons set forth below, Plaintiff respectfully requests that this Court deny Defendants’ Motion in full; in the alternative, Plaintiff respectfully requests leave of this Court to file an amended complaint, in the interests of justice and judicial economy.
II. BRIEF FACTUAL SUMMARY The following facts are undisputed. Prior to the birth of his daughter Hoda Muthana, Plaintiff Ahmed Ali Muthana worked as a diplomat for the Yemen Permanent Mission to the United Nations. Doc. 1-5. He held this position beginning on October 15, 1990. Doc. 1-5. He was fired from this position in June 1994. Doc. 19-2 at 12 (“Fired 6/94 SEE CARRDEX”). On June 2, 1994, the Yemeni Ambassador Al-Aashtal required Mr. Muthana to surrender his diplomatic identity card. Doc. 1 at 6; see also Ex. A. Mr. Muthana’s diplomatic position officially ended no later than September 1, 1994. Doc. 19-2 at 5, 14; see also Doc. 1-5. Sometime after his termination,
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the United States Mission to the United Nations received notice of both Mr. Muthana’s June termination and his official end date of September 1, 1994.2
Hoda Muthana was born later, in the state of New Jersey, on October 28, 1994.3 Utilizing
his daughter’s birth certificate, Mr. Muthana applied for a passport for his minor daughter Hoda
Muthana in 2004. Doc. 1 at 6. After receiving this application, officials from the United States
State Department initially questioned whether Ms. Muthana was eligible for a U.S. passport, based
on their records purportedly showing her father’s diplomatic status remained in effect until
February 6, 1995. In response, Ahmed Ali Muthana provided the government with a letter from
the United States Mission to the United Nations, signed by Russell F. Graham, Minister Counselor
for Host Country Affairs, and addressed to Bureau of Citizenship and Immigration Services, which
confirms that the diplomatic status he had due to his employment at the U.N. was terminated prior to the time of Ms. Muthana’s birth.4 The United States accepted this documentation and issued
Hoda Muthana the requested passport on January 24, 2005, listing her nationality as “United States of America.”5 The United States later renewed Ms. Muthana’s passport on February 21, 2014.6
2 Defendants erroneously state that there is no dispute as to the date on which the United States Mission to the United Nations learned of the termination of Mr. Muthana’s duties. Doc. 19 at 27. While Plaintiff does not believe the date of official notice to be relevant to the end of his duties and therefore his entitlement to immunity, Plaintiff does not know when, exactly, the United States Mission to the United Nations learned of his termination. Plaintiff notes that the document dated February 6, 1995 provided by Defendants (Doc. 19-2 at p. 14), and presumably compiled in advance of that date, lists Plaintiff and two other individuals on behalf of Yemen as “left the Mission in September 1994” and that, regarding Plaintiff, the typed notation of “No further information available” is crossed out by hand, with a handwritten notation reflecting Plaintiff’s plans for the future added, with the date February 11, 1995 also handwritten beneath it. However, other than to strongly indicate that the United States Mission to the United Nations knew of the end of Plaintiff’s duties prior to the February 6 publication date of the “blue list” termination excerpt provided, the documents provided by Defendants do not conclusively reveal the date on which the United States first learned of the end of Mr. Muthana’s duties. 3 See Doc. 1-4, Ex. B to Plaintiff’s Complaint.
4 Doc. 1-5, Exhibit C to Plaintiff’s Complaint. 5 Doc. 1-6, Exhibit D to Plaintiff’s Complaint. 6 Id.
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Ms. Muthana traveled to Syria beginning in November 2014, unbeknownst to her family at the time. Plaintiff Ahmed Ali Muthana immediately began working with the FBI to find her, and kept them up to date on any communications he had with her. Doc. 1. In or about November 2018, Ms. Muthana communicated that she was trying to escape ISIS-controlled Syria. Ex. A. By December 2018 she had left her home in Syria with her young son, hoping to turn herself into American forces. By January 2019, she approached Syrian Democratic forces, and was first detained at Camp al-Hawl prior to her relocation to Camp Roj. Ex. A. Ms. Muthana identified herself and her son as United States citizens. Despite this identification, she was not interred with other persons believed to be United States citizens.
She has repeatedly and consistently articulated her desire to return to the United States, her remorse over her prior actions, and her willingness to surrender to United States authorities for any criminal consequences she may face.7 Nonetheless, on February 20, 2019, the United States Department of State declared on its website that “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted into the United States. She does not have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.”8 Later on February 20, 2019,
7 Ex. A, letter from Hoda Muthana, attached to Declaration of Ahmed Muthana; see also Martin Chow and Bethlan McKernan, Hoda Muthana ‘deeply regrets’ joining Isis and wants to return home, The Guardian (Feb. 17, 2019), available at https://www.theguardian.com/world/2019/feb/17/us-woman-hoda-muthana-deeply-regrets-joining-isisand-wants-return-home (where Ms. Muthana stated that “I want to return [to the United States] and I’ll never come back to the Middle East” as well as that she “deeply regrets” traveling to Syria to join the Islamic State.); “I am allowed back,” U.S. “ISIS bride” Hoda Muthana tells CBS News, CBS News (March 4, 2019), available at https://www.cbsnews.com/news/us-isis-bride-hoda-muthana-court-bid-to-come-home-donald-trump-says-notcitizen/ (“Muthana told CBS News she would be willing to go to jail if that’s what it takes to get back to America.”); Richard Engel, ISIS bride Hoda Muthana says she’ll have ‘no problem’ returning to U.S., NBC News (Feb. 22, 2019), available at https://www.nbcnews.com/news/world/isis-bride-hoda-muthana-says-she-ll-have-no-problemn974391 (“[w]hen asked what she expects will happen if she is allowed to return to the U.S., Muthana replied, ‘Of course I’ll be given jail time.’"). 8 Press Release dated February 20, 2019, located on Department of State website (https://www.state.gov/secretary/remarks/2019/02/289558.htm) (last visited February 20, 2019).
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President Donald J. Trump tweeted that “I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!”9 Secretary of State Pompeo then appeared on national television, proclaiming that Ms. Muthana “is a terrorist. She is not a United States citizen. She ought not return to this country.”10 After prompting that she had been born in the United States, Secretary Pompeo averred that “she may have been born in the United States”, but nonetheless made the conclusory assertion, which is not within his authority to make, that “she is not a U.S. citizen, nor is she entitled to U.S. citizenship.”11 As reasoning, Secretary Pompeo stated simply “You have to remember the context” and described the war against ISIS.12
Prior to the above proclamations, the United States did not initiate any action in the courts of the United States to revoke Ms. Muthana’s citizenship. It has not done so since then either. Defendants did, however, file their Motion to Dismiss or in the Alternative Partial Motion for Summary Judgment in this matter. Doc. 19 (“Defendants’ Motion”). Plaintiff hereby submits this Response in Opposition, and for the reasons stated below respectfully requests that Defendants’ Motion be denied in its entirety.13
III. RELEVANT LEGAL STANDARDS As Defendants attempt to dismiss Plaintiff’s claims under several different standards, Plaintiff will address these in turn below under the appropriate standards.
9 https://twitter.com/realdonaldtrump/status/1098327855145062411?s=21 (last visited February 20, 2019). 10 https://www.today.com/video/mike-pompeo-on-hoda-muthana-she-is-not-a-us-citizen-1446009923715 (last visited February 27, 2019). 11 Id. 12 Id. 13 Plaintiff does not wish to pursue the claim at Count 2 in Plaintiff’s Original Complaint, which is derivative of Ms. Muthana’s mother’s immigration status at the time of Ms. Muthana’s birth (Doc. 1 at 13).
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A. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(1) Generally, a reviewing court “consider[] Rule 12(b)(1){ TA \s "Fed. R. Civ. P. 12(b)1" }
challenges to its subject matter jurisdiction before assessing the legal sufficiency of a claim under Rule 12(b)(6){ TA \s "Fed. R. Civ. P. 12(b)(6)" }." Lempert v. Rice, 956 F. Supp. 2d 17, 27 (D.D.C. 2013){ TA \l "Lempert v. Rice, 956 F. Supp. 2d 17 (D.D.C. 2013)" \s "Lempert v. Rice, 956 F. Supp. 2d 17, 27 (D.D.C. 2013)" \c 1 }. In evaluating a motion to dismiss brought under Rule 12(b)(1), courts must "accept as true all of the factual allegations contained in the complaint." Wilson v. District of Columbia, 269 F.R.D. 8, 11 (D.D.C. 2010){ TA \l "Wilson v. District of Columbia, 269 F.R.D. 8 (D.D.C. 2010)" \s "Wilson v. District of Columbia, 269 F.R.D. 8, 11 (D.D.C. 2010)" \c 1 } (citing Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993){ TA \l "Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163 (1993)" \s "Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993)" \c 8 }). Reviewing courts are instructed to “review the complaint liberally while accepting all inferences favorable to the plaintiff.” Nattah v. Bush, 770 F. Supp. 2d 193, 199 (D.D.C. 2001){ TA \l "Nattah v. Bush, 770 F. Supp. 2d 193 (D.D.C. 2001)" \s "Nattah v. Bush, 770 F. Supp. 2d 193, 199 (D.D.C. 2001)" \c 1 } (citing Barr v. Clinton, 370 F.3d 1196, 1199, 361 U.S. App. D.C. 472 (D.C. Cir. 2004){ TA \l "Barr v. Clinton, 370 F.3d 1196 (D.C. Cir. 2004)" \s "Barr v. Clinton, 370 F.3d 1196, 1199, 361 U.S. App. D.C. 472 (D.C. Cir. 2004)" \c 1 }). In other words, a reviewing court “assumes the truth of the allegations made and construes them favorably to the pleader.” Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003){ TA \l "Empagran S.A. v. F. HoffmanLaroche, Ltd., 315 F.3d 338 (D.C. Cir. 2003)" \s "Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003)" \c 1 } (citing Scheuer v. Rhodes, 416 U.S. 232, 236 (1974){ TA \l "Scheuer v. Rhodes, 416 U.S. 232 (1974)" \s "Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)" \c 8 }). A court may
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dismiss a complaint for lack of subject-matter jurisdiction only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Empagran, 315 F.3d at 343{ TA \s "Empagran S.A. v. F. Hoffman-Laroche, Ltd., 315 F.3d 338, 343 (D.C. Cir. 2003)" } (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957){ TA \l "Conley v. Gibson, 355 U.S. 41 (1957)" \s "Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)" \c 8 }). Courts may also consider relevant materials outside the pleadings when evaluating a motion to dismiss brought under Fed. R. Civ. P. 12(b)(1){ TA \s "Fed. R. Civ. P. 12(b)1" }. Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005){ TA \l "Settles v. U.S. Parole Comm'n, 429 F.3d 1098 (D.C. Cir. 2005)" \s "Settles v. U.S. Parole Comm'n, 429 F.3d 1098, 1107 (D.C. Cir. 2005)" \c 1 }.
B. Motions to Dismiss Under Federal Rule of Civil Procedure 12(b)(6) A motion to dismiss brought under Federal Rule of Civil Procedure 12(b)(6){ TA \s "Fed. R.
Civ. P. 12(b)(6)" } challenges the legal sufficiency of a complaint. Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002){ TA \l "Browning v. Clinton, 292 F.3d 235 (D.C. Cir. 2002)" \s "Browning v. Clinton, 292 F.3d 235, 242 (D.C. Cir. 2002)" \c 1 }. Accordingly, the proper test when assessing 12(b)(6){ TA \s "Fed. R. Civ. P. 12(b)(6)" } motion is not “whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236 (1974){ TA \s "Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)" }. The Supreme Court has also held that in reviewing a complaint, “it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test." Id{ TA \s "Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)" }. All that a reviewing court is required to determine is whether a plaintiff has properly stated a claim. ACLU Found. of S. Cal. v. Barr, 952 F.2d 457, 467 (D.C. Cir. 1991){ TA \l "ACLU Found. of S. Cal. v. Barr, 952 F.2d 457 (D.C. Cir. 1991)" \s "ACLU Found. of S. Cal. v. Barr,
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952 F.2d 457, 467 (D.C. Cir. 1991)" \c 1 }. In order to survive a motion to dismiss brought under this Rule, the complaint must “plead[] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged,” and “must suggest a plausible scenario that shows that the pleader is entitled to relief.'" Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012){ TA \l "Patton Boggs LLP v. Chevron Corp., 683 F.3d 397 (D.C. Cir. 2012)" \s "Patton Boggs LLP v. Chevron Corp., 683 F.3d 397, 403 (D.C. Cir. 2012)" \c 1 } (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009){ TA \l "Ashcroft v. Iqbal, 556 U.S. 662 (2009)" \s "Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)" \c 8 }). Similar to the review of Rule 12(b)(1){ TA \s "Fed. R. Civ. P. 12(b)1" } motions, courts reviewing (12)(b)(6){ TA \s "Fed. R. Civ. P. 12(b)(6)" } challenges must treat a plaintiff’s allegations as true, and draw all reasonable inferences in the favor of the plaintiff. Muhammad v. United States, 300 F. Supp. 3d 257, 262 (D.D.C. 2018){ TA \l "Muhammad v. United States, 300 F. Supp. 3d 257 (D.D.C. 2018)" \s "Muhammad v. United States, 300 F. Supp. 3d 257, 262 (D.D.C. 2018)" \c 1 } (citing Momenian v. Davidson, 878 F.3d 381, 387 (D.C. Cir. 2017){ TA \l "Momenian v. Davidson, 878 F.3d 381 (D.C. Cir. 2017)" \s "Momenian v. Davidson, 878 F.3d 381, 387 (D.C. Cir. 2017)" \c 1 }).
C. Standard Under Federal Rule of Civil Procedure 56 In evaluating a motion for summary judgment brought pre-judgment as here, Defendants
request summary judgment on Counts 1-8 of Plaintiff’s Complaint “in the alternative”; they ask this Court to find that there is no genuine issue of material fact on the question of Ms. Muthana’s citizenship. Summary judgment is only appropriate “when no genuine issues of material fact are in dispute.” Fed. R. Civ. P 56{ TA \s "Fed. R. Civ. P. 56" }. “[T]o be material, the factual assertion must be capable of affecting the substantive outcome of the litigation,” and to be genuine, “the issue must be supported by sufficient admissible evidence that a reasonable trier-of fact could find
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for the nonmoving party.” Fed. R. Civ. P 56{ TA \s "Fed. R. Civ. P. 56" }; see also Maydak v. United States DOJ, 254, F. Supp. 2d 23, 32 (D.D.C. 2003){ TA \l "Maydak v. United States DOJ, 254, F. Supp. 2d 23 (D.D.C. 2003)" \s "Maydak v. United States DOJ, 254, F. Supp. 2d 23, 32 (D.D.C. 2003)" \c 1 }; Estate of Gaither v. District of Columbia, 655 F. Supp. 2d 69, 78 (D.D.C. 2009){ TA \l "Estate of Gaither v. District of Columbia, 655 F. Supp. 2d 69 (D.D.C. 2009)" \s "Estate of Gaither v. District of Columbia, 655 F. Supp. 2d 69, 78 (D.D.C. 2009)" \c 1 }.
The party seeking summary judgment “bears the heavy burden of establishing that the merits of its case are so clear” that summary judgment is appropriate. Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987){ TA \l "Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294 (D.C. Cir. 1987)" \s "Taxpayers Watchdog, Inc. v. Stanley, 819 F.2d 294, 297 (D.C. Cir. 1987)" \c 1 }; see also Northland Capital Corp., v. Silver, 1983 U.S. Dist. LEXIS 18115, *14 (D.D.C. March 30, 1983){ TA \l "Northland Capital Corp., v. Silver, 1983 U.S. Dist. LEXIS 18115, *14 (D.D.C. March 30, 1983)" \s "Northland Capital Corp., v. Silver, 1983 U.S. Dist. LEXIS 18115, *14 (D.D.C. March 30, 1983)" \c 1 } (“a party who seeks to dispose of an action on a motion for summary judgment bears a heavy burden”). In considering a motion for summary judgment, the nonmovant’s evidence must be believed, and “all justifiable inferences are to be drawn in his favor.” Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986){ TA \l "Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986)" \s "Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986)" \c 8 }. The nonmovant’s burden at this stage is not to prove his case; he may prevail simply by providing evidence “that would permit a reasonable jury to find [in his favor].” Laningham v. U.S. Navy, 813 F.2d 1236, 1242, 259 U.S. App. D.C. 115 (D.C. Cir. 1987){ TA \l "Laningham v. U.S. Navy, 813 F.2d 1236 (D.C. Cir. 1987)" \s "Laningham v. U.S. Navy, 813 F.2d 1236, 1242, 259 U.S. App. D.C. 115 (D.C. Cir. 1987)" \c 1 }. The burden for demonstrating the appropriateness of summary judgment is even
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heavier in the early stages of litigation, and summary judgment “ordinarily ‘is proper only after the plaintiff has been given adequate time for discovery.’” Americable Int’l v. Department of Navy, 129 F.3d 1271 (D.C. Cir. 1997){ TA \l "Americable Int’l v. Department of Navy, 129 F.3d 1271 (D.C. Cir. 1997)" \s "Americable Int’l v. Department of Navy, 129 F.3d 1271 (D.C. Cir. 1997)" \c 1 } (quoting “First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988){ TA \l "First Chicago Int’l v. United Exch. Co., 836 F.2d 1375 (D.C. Cir. 1988)" \s "First Chicago Int’l v. United Exch. Co., 836 F.2d 1375, 1380 (D.C. Cir. 1988)" \c 1 }; see also Tabb v. District of Columbia, 477 F. Supp. 2d 185, 188, n. 1 (D.D.C. 2007){ TA \l "Tabb v. District of Columbia, 477 F. Supp. 2d 185 (D.D.C. 2007)" \s "Tabb v. District of Columbia, 477 F. Supp. 2d 185, 188, n. 1 (D.D.C. 2007)" \c 1 } (“Defendants…sought summary judgment very early in this lawsuit—before any discovery. The Court notes that this is usually a disfavored practice”). No discovery has taken place to date in this matter. Accordingly, this Court finding summary judgment appropriate in this matter at this stage would require that the Court hold that, even at this early pre-discovery stage, the issues presented are “so one-sided that one party must prevail as a matter of law.” Liberty Lobby, 477 U.S. at 259{ TA \s "Anderson v. Liberty Lobby Inc., 477 U.S. 242, 255 (1986)" }. Defendants have fallen significantly short of this burden.
IV. NEXT FRIEND STATUS IS APPROPRIATE HERE In their Motion to Dismiss, Defendants argue that Plaintiff’s Complaint should be dismissed because he “fails to establish that he has standing to sue as next friend of Muthana and A.M.” Doc. 19 at 11. The facts do not support this argument. A. Standard for Need and Identifying an Appropriate Next Friend Next friend status, which allows a person to bring suit on behalf of the actual party in interest, is appropriate when two conditions are met. First, “a next friend must provide an adequate
10

Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 16 of 52
explanation—such as inaccessibility, mental incompetence, or other disability—why the real party in interest cannot appear on his own behalf,” and second the purported next friend “must be truly dedicated to the best interest of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest.” Whitmore v. Arkansas, 495 U.S. 149, 163 (1990){ TA \l "Whitmore v. Arkansas, 495 U.S. 149 (1990)" \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" \c 8 }; see also Doe v. Bush, 2006 U.S. Dist. LEXIS 79175 (D.D.C. October 31, 2006){ TA \l "Doe v. Bush, 2006 U.S. Dist. LEXIS 79175 (D.D.C. October 31, 2006)" \s "Doe v. Bush, 2006 U.S. Dist. LEXIS 79175 (D.D.C. October 31, 2006)" \c 1 } (noting that “precedent in this circuit does not speak to whether or not the Court should impute a significant relationship requirement to the second prong of Whitmore{ TA \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" }”). While the burden to satisfy the requirements of next friend standing is on the party seeking to assert it, Plaintiff has clearly done so here. See Whitmore, 495 U.S. at 164{ TA \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" }. B. Next Friend Standing May Be Invoked In General Civil Litigation
Prior to applying the two prongs set forth in Whitmore{ TA \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" }, Defendants argue “at the threshold” that the Court should reject Plaintiff’s claim of next friend standing because he “has not invoked any applicable statute or rule authorizing his next-friend status.” Doc. 19 at 12. Defendants accurately note that “Muthana is not a minor, and Plaintiff has not alleged that she is mentally incompetent…nor is this a habeas corpus proceeding,” citing to Whitmore{ TA \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" } and Fed. R. Civ. P. 17(c)(2){ TA \l "Fed. R. Civ. P. 17(c)(2)" \s "Fed. R. Civ. P. 17(c)(2)" \c 4 }. Id. Although Defendants are correct that next friend standing is commonly invoked in habeas proceedings, this Court has expressly held that “the most natural reading of Whitmore{ TA \s "Whitmore v. Arkansas, 495 U.S.
11

Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 17 of 52
149, 163 (1990)" } is that next friend standing is not limited to habeas cases, but instead may be invoked if plaintiffs can sufficiently demonstrate its necessity.” Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70, 75-77 (D.D.C. 2016){ TA \l "Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70 (D.D.C. 2016)" \s "Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70, 75-77 (D.D.C. 2016)" \c 1 } (emphasis added). In Ahmed Salem Bin Jaber{ TA \s "Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70, 75-77 (D.D.C. 2016)" }, a case involving drone strikes in Yemen, this Court rejected as unpersuasive defendants’ claim that “in cases involving mentally competent adults, next friend standing has only been recognized in habeas corpus cases,” and instead held that the Whitmore{ TA \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" } opinion “expressly declined to hold that such statutory authorization is necessary.” Id. at 75{ TA \s "Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70, 75-77 (D.D.C. 2016)" }; see also Foreman v. Heineman, 240 F.R.D. 456, 516 (D. Neb. 2007){ TA \l "Foreman v. Heineman, 240 F.R.D. 456 (D. Neb. 2007)" \s "Foreman v. Heineman, 240 F.R.D. 456, 516 (D. Neb. 2007)" \c 1 } (noting that “although Whitmore’s{ TA \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" } next friend analysis was first enunciated in the context of habeas law, it has been extended to general civil litigation”). Defendants’ contention that next friend standing should not be available “in a non-habeas case where no statute or rule authorizes suit by a next friend” contradicts this Court’s precedent. Doc. 19 at 13. Plaintiff should be permitted to assert next friend standing, as the factual background supports its appropriateness. C. Plaintiff Demonstrates Appropriate Grounds for Next Friend Status in This Case
Defendants next argue that Plaintiff cannot satisfy the Whitmore{ TA \s "Whitmore v. Arkansas, 495 U.S. 149, 163 (1990)" } test because he fails to provide an “adequate explanation why the real party in interest cannot appear.” Doc. 19 at 13, citing Whitmore, 495 U.S. at 163{ TA \s "Whitmore
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Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 18 of 52
v. Arkansas, 495 U.S. 149, 163 (1990)" }. Defendants assert that Plaintiff’s references to receiving communications from Ms. Muthana, as well as Ms. Muthana’s conversations with western media, undercut the assertion that she is unable to bring this lawsuit on her own behalf. This argument mischaracterizes the factual basis underlying Plaintiff’s claim of next friend standing, as well as the requirement applicable to a motion to dismiss to view all facts in the light most favorable to the non-movant. Unlike in { TA \l "Al-Aulaqi v. Obama, 727 F. Supp. 2d 1 (D.D.C. 2010)" \s "AlAulaqi v. Obama, 727 F. Supp. 2d 1, 19 (D.D.C. 2010)" \c 1 }Al-Aulaqi, where the court found that Plaintiff was voluntarily incommunicado as a “result of his own choice,” Ms. Muthana is being held by Kurdish forces and has little to no control over her ability to communicate with the outside world. Compare Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 19 (D.D.C. 2010){ TA \s "Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 19 (D.D.C. 2010)" }. She is not able to text or call home freely, and both Plaintiff and counsel for Plaintiff have no ability to initiate contact with her. Ms. Muthana has not had reliable access to communication since her arrival at Camp Roj, where communication via phone can only be done through the camp’s administration phone, using WhatsApp, cannot be arranged in advance, and does not occur at predictable intervals.14 Accordingly, although Plaintiff has sporadically received text messages from Ms. Muthana, these messages arrive inconsistently and have largely come from unrecognized numbers, with no way to properly verify that Ms. Muthana is in fact the actual sender. See Ahmed Salem Bin Jaber, 155 F. Supp. 3d at 76-77{ TA \s "Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70, 75-77 (D.D.C. 2016)" } (finding that plaintiffs were inaccessible where “telephone contact was sporadic and difficult,” despite defendants’ speculation that “even if plaintiffs cannot physically leave Yemen, they ‘may be able to participate in any court hearings by telephone’”). Plaintiff has received no phone calls from his
14 See the attached declarations of Ahmed Ali Muthana, at Exhibit A.
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daughter, and counsel for Plaintiff has been unable to speak directly to Ms. Muthana since her arrival at Camp al-Hawl at the beginning of this year. Since then, multiple critical steps in this lawsuit have occurred, all without counsel’s ability to directly or consistently contact the main person on whose behalf this lawsuit has been brought.
Defendants are correct in their assertion that, on a handful of occasions, Ms. Muthana has spoken with members of the western news media; however, those conversations were facilitated by the media outlets themselves, and conducted largely in circumstances where the individual interviewing Ms. Muthana physically traveled to Camp Roj. In light of the national attention garnered by Ms. Muthana’s case and the thorough news coverage of the events unfolding in Syria, it would be highly unusual for Ms. Muthana not to be contacted by members of the media. However, since arriving at Camp Roj, Ms. Muthana lacks the freedom of mobility and communication required to arrange such meetings independently, and has not done so on any occasion. Finally, counsel for Plaintiff cannot be reasonably expected to travel to Syria in order to communicate with Ms. Muthana. Not only is travel to Syria highly discouraged by Defendants, as indicated by the level four travel advisory put in place by the U.S. Department of State, but Plaintiff is represented by a nonprofit organization with limited financial resources.15 Ms. Muthana’s rights and status as a U.S. citizen rest on the outcome of this litigation, and requiring her to litigate those rights in circumstances where her counsel cannot physically visit her, initiate contact with her, or reliably count on her ability to access telephone or internet communication would be fundamentally unjust. This is particularly true since Ms. Muthana’s inaccessibility comes as a direct result of Defendants’ position that she will not be permitted to return to the United States. See ACLU Found. v. Mattis, 286 F. Supp. 3d 53, 58 (D.D.C. 2017){ TA \l "ACLU Found. v. Mattis,
15 https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/syria-travel-advisory.html
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286 F. Supp. 3d 53 (D.D.C. 2017)" \s "ACLU Found. v. Mattis, 286 F. Supp. 3d 53, 58 (D.D.C. 2017)" \c 1 } (noting that the Defense Departments argument that next friend standing should be denied based on a failure to meet and confer with the detainee was “disingenuous at best, given that the Department is the sole impediment” to counsel’s ability to meet with the plaintiff).
Defendants’ final argument against the appropriateness of next friend standing rests on their assertion that Plaintiff “has not made an adequate showing that he is acting in accord with Muthana’s interests.” Doc. 19 at 14. In support of this argument, Defendants rely on statements made by Ms. Muthana in 2015, nearly four years ago.16 Those statements are not legally relevant to the determination of whether her present interests align with Plaintiff’s in this 2019 litigation. In all communications since leaving ISIS-controlled territory, Ms. Muthana has been clear and consistent that she regrets her actions and wishes to return to the United States face justice. This is true of both her conversations with the media, which have been made public, and her limited communications with her father and counsel for Plaintiff. 17 In light of Ms. Muthana’s own videotaped, recent and consistent expressions of her interests, as well as her actions involuntarily leaving ISIS-controlled territory and surrendering, Defendants cannot convincingly argue that Ahmed Muthana’s interest in bringing Ms. Muthana back to the United States with her son is not aligned with her own, when she has repeatedly stated that same wish. The current harmony in

16 Even examining statements purportedly made by Ms. Muthana in 2017 is irrelevant to this analysis. See

https://www.buzzfeednews.com/article/ellievhall/hoda-muthana-isis-instagram-twitter-tumblr-alabama.

Ms.

Muthana left ISIS-controlled territory in December of 2018, and has since then voiced nothing but her desire to return

to the United States with her son, and willingness to be held accountable for her actions under the U.S. justice system.

17 See letter from Hoda Muthana, attached to Declaration of Ahmed Muthana, Ex. A (the only physical letter received by Plaintiff or Plaintiff’s counsel); See also https://www.hstoday.us/subject-matter-areas/terrorism-study/americanborn-hoda-muthana-tells-all-about-joining-isis-and-escaping-the-caliphate/ (“it was up until the very end that I told my dad and my family that I wanted to come back. And my lawyers.” She further states that, in going to the Islamic State, she “found hell on earth.”); see also https://www.buzzfeednews.com/article/ellievhall/hoda-muthana-isisinstagram-twitter-tumblr-alabama (“Now, she’s sitting in a Kurdish refugee camp with her son … who will turn 2 soon, begging to return to her homeland, the United States”).

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interest between Ms. Muthana and her father is further evidenced by the fact that, since Ms. Muthana left the U.S. in 2015, her father did not attempt at any point to initiate litigation on his daughter’s behalf, until she explicitly stated her remorse and her desire to return home in late 2018. Prior to that alignment, and despite being her parent, Mr. Muthana did not attempt to use the courts for what he thought was best for his daughter. Thus, Plaintiff is not merely “a loving parent who wants only what he rationally believes to be in the best interests of his adult child;” he brought this litigation in order to facilitate the precise relief that Ms. Muthana herself has repeatedly requested: her return to the United States with her son. Doc. 19 at 15.
The showing required for a proper assertion of next friend standing is meant to ensure that individuals cannot circumvent constitutional limitations on the courts’ jurisdiction by merely declaring themselves a ‘next friend;’ there is no risk of any such slippery slope in allowing Ms. Muthana to access the courts through her father, who is present in the United States and regularly and reliably communicates with counsel. See Ahmed Salem Bin Jaber, 155 F. Supp. 3d at 77{ TA \s "Ahmed Salem Bin Jaber v. United States, 155 F. Supp. 3d 70, 75-77 (D.D.C. 2016)" } (“no slippery slope is likely to result from this Court’s decision, which holds only that a close family relative, who has advocated on plaintiffs’ behalf for years, is able to survive a motion to dismiss”). This case is based on a set of highly unusual and context-specific facts, unlikely to be repeated in future lawsuits; even if they do recur, next friend status here is consistent with the law. Accordingly, this Court bears no risk in applying next friend standing here, where Plaintiff satisfies the requirements. Conversely, without utilizing next friend standing, Ms. Muthana and her young child are left without a vehicle to fairly challenge the effective revocation of her United States citizenship, and the United States’ failure to continue recognizing her as a United States citizen.
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V. MS. MUTHANA IS ENTITLED TO DECLARATORY RELIEF BASED ON THE DEPARTMENT OF STATE PREVIOUSLY ISSUING HER TWO PASSPORTS.
Defendants point out that the Department of State only revoked Ms. Muthana’s passport,
and did not revoke her citizenship.18 Plaintiff agrees. What matters here is not that the Department
of State revoked Ms. Muthana’s United States passport in 2016; what matters is that the
Department of State issued her one in the first place. The Department of State did this on two
occasions: first in January 2005, then again in February, 2014. Doc. 1-6. The Department of State
did this after initially raising the question of her father’s diplomatic status at the time of Ms.
Muthana’s, and after considering his response which provided the letter Mr. Muthana received
from the then-current Minister Counselor, Host Country Affairs, United States Mission to the
United Nations. Doc. 1-5. This passport, issued in 2005 by the Department of State, lists Ms.
Muthana’s nationality as “United States of America.” Ex. A at internal Ex. 1.
Defendants do not, and cannot, dispute any of these facts. And while Defendants may wish
the legal impact of these facts were otherwise, they cannot reverse the clock to 2005, or even 2014,
to change the facts as they existed at the time, and therefore remain today. With a letter from the
official in the very same position which Defendants now claim is such compelling authority,
Plaintiff Muthana sufficiently demonstrated to the Department of State his lack of immunity at the
18 While Plaintiff does not challenge that the Department of State has the right to revoke passports of U.S. citizens, Plaintiff does dispute that Defendants ever provided the proper notice to Ms. Muthana that it was revoking her passport. At the time the Department of State sent the letter in question dated January 15, 2016 addressed to Ms. Muthana (Doc. 1-6), Ms. Muthana had been a legal adult for just over three years. And Ms. Muthana’s presence outside the United States at that time, and break in communications with her family at the time, was widely publicized and reported. Doc. 19 at 20, fn. 4. Nonetheless, the Department of State sent this letter to Ms. Muthana’s parents’ address. Doc. 1-6. Upon receipt of this letter, Mr. Muthana responded that (1) Ms. Muthana no longer resided at that address and was out of the country, and (2) Mr. Muthana was not a diplomat at the time of his daughter Hoda’s birth, and he re-sent copies of the materials already provided to the Department of State eleven years prior to that, when the Department of State had first raised any question as to his status as a diplomat at the time of Ms. Muthana’s birth. Ex. A. Nonetheless, Defendants now assert that Ms. Muthana “has not followed this process or even attempted to follow this process” – despite Defendants knowing the letter did not reach her. Doc. 19 at 32. Defendants’ attempt to place the burden on Ms. Muthana to have appealed from a letter she never received, when she was not in the country, and which the Department of State was notified Ms. Muthana had not received, is disingenuous at best. At the least, it is not grounds for dismissal of Plaintiff’s claims in this matter.
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time of Ms. Muthana’s birth, and therefore her status as a birthright citizen; the Department of
State was convinced enough to issue Ms. Muthana a passport. Cf. Doc. 1-5 with Doc. 19-2; see
also Doc. 19 at 27 (characterizing the “certification” by the individual in the position of
Minister/Counselor for Host Country Affairs issued 25 years after the fact as “contemporaneous”
and “conclusive” despite its contradictions to the letter issued by the individual in the same position
in 2004, only 10 years after Ms. Muthana’s birth).
A. A United States Passport Is Legally Recognized as Proof of U.S. Citizenship.
Defendants recognize the legal import of passports in their Motion: 19 passports “’provide
proof of one’s status as a citizen.’ Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018){
TA \l "Chacoty v. Tillerson, 285 F. Supp. 3d 293 (D.D.C. 2018)" \s "Chacoty v. Tillerson, 285 F.
Supp. 3d 293, 298 (D.D.C. 2018)" \c 1 }.” Doc. 19 at 31.20 Multiple courts as well as Congress
recognize that a United States passport serves as proof of recognition as a United States citizen.
“The INS [Immigration and Naturalization Service, precursor to present USCIS] has recognized …
a passport [as] conclusive evidence of citizenship. See Matter of Villanueva, Interim Decision
#2968 (BIA 1984){ TA \l "Matter of Villanueva, Interim Decision #2968 (BIA 1984)" \s "Matter
19 Defendants assert that they bring both a Motion to Dismiss under Rules 12(b)(1){ TA \s "Fed. R. Civ. P. 12(b)1" } and (6){ TA \s "Fed. R. Civ. P. 12(b)(6)" }, and a partial motion for summary judgment. However, Defendants have failed to comply with this Court’s stated preferences for motions for summary judgment, that “[t]he moving party’s statement of material facts shall be a short and concise statement, in numbered paragraphs, of all material facts as to which the moving party claims there is no genuine dispute. The statement must contain only one factual assertion in each numbered paragraph.” Accordingly, it is difficult for Plaintiff to comply with this Court’s counterpart requirement that “[t]he party responding to a statement of material facts must (1) restate the movant’s statement of undisputed material fact in numbered paragraphs, and (2) immediately following each numbered paragraph state the opponent’s response to the stated fact.” Further complicating this task is the intermingled manner in which Defendants present their Motion, which does not readily segregate moving to dismiss from moving for summary judgment. Nonetheless, where clear that Defendants move for summary judgment within this blended Motion, Plaintiff will note the stated and disputed facts. 20 As discussed in further detail in Section VI. B, infra, the Chacoty{ TA \s "Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018)" } case on which Defendants rely is immensely instructive in showing why a plaintiff who is outside of the United States at the time of bringing an action, as Ms. Muthana is, does not need to exhaust the administrative provisions of 8 U.S.C. § 1503(b) and (c){ TA \l "8 U.S.C. § 1503" \s "8 U.S.C. § 1503(b) and (c)" \c 2 }. Chacoty, 285 F. Supp. 3d at 303{ TA \s "Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018)" }.
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Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 24 of 52
of Villanueva, Interim Decision #2968 (BIA 1984)" \c 1 }. In Villanueva{ TA \s "Matter of Villanueva, Interim Decision #2968 (BIA 1984)" }, the petitioner sought to obtain a preferential visa for his spouse on the basis of his United States citizenship. He proved his citizenship with a passport. The INS held that 22 U.S.C. § 2705{ TA \l "22 U.S.C. § 2705" \s "22 U.S.C. § 2705" \c 2 } made a passport conclusive proof of citizenship.” Magnuson v. Baker, 911 F.2d 330, n. 7 (9th Cir. 1990){ TA \l "Magnuson v. Baker, 911 F.2d 330 (9th Cir. 1990)" \s "Magnuson v. Baker, 911 F.2d 330, n. 7 (9th Cir. 1990)" \c 1 }.
Numerous other courts recognize that, pursuant to 22 U.S.C. § 2705{ TA \s "22 U.S.C. § 2705" }, a U.S. passport provides conclusive proof of U.S. citizenship. See Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017){ TA \l "Xia v. Tillerson, 865 F.3d 643 (D.C. Cir. 2017)" \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" \c 1 } (stating that “[p]resenting proof of a naturalization certificate or passport—even if already administratively cancelled—would seem to satisfy that prima facie requirement [for evidence of citizenship]”); Keil v. Triveline, 661 F.3d 981, 987 (8th Cir. 2011){ TA \l "Keil v. Triveline, 661 F.3d 981 (8th Cir. 2011)" \s "Keil v. Triveline, 661 F.3d 981, 987 (8th Cir. 2011)" \c 1 } (acknowledging that passports are “conclusive proof of citizenship in administrative immigration proceedings.”); Magnuson, 911 F.2d at 333{ TA \s "Magnuson v. Baker, 911 F.2d 330, n. 7 (9th Cir. 1990)" } (finding that “[t]he statute [22 U.S.C. § 2705{ TA \s "22 U.S.C. § 2705" }] plainly states that a passport has the same force and effect as a certificate of naturalization or citizenship. […]. The holders of these other documents can use them as conclusive evidence of citizenship. Therefore, so can a holder of a passport”); Edwards v. Bryson, 884 F. Supp. 2d 202, 206 (E.D. Pa. 2012){ TA \l "Edwards v. Bryson, 884 F. Supp. 2d 202 (E.D. Pa. 2012)" \s "Edwards v. Bryson, 884 F. Supp. 2d 202, 206 (E.D. Pa. 2012)" \c 1 } (reasoning that a holder of an expired passport is a U.S. citizen because “[t]o hold otherwise, would lessen the import of a passport as compared to that of
19

Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 25 of 52
a certificate of naturalization or a certificate of citizenship, which is exactly what § 2705{ TA \s "22 U.S.C. § 2705" } forbids....”); United States v. Clarke, 628 F. Supp. 2d 15, 21 (D.D.C. 2009){ TA \l "United States v. Clarke, 628 F. Supp. 2d 15 (D.D.C. 2009)" \s "United States v. Clarke, 628 F. Supp. 2d 15, 21 (D.D.C. 2009)" \c 1 } (recognizing that 22 U.S.C. § 2705{ TA \s "22 U.S.C. § 2705" } “puts passports in the same status as certificates of naturalization for the purpose of proving U.S. citizenship.”); Banchong v. Kane, 2009 U.S. Dist. LEXIS 127134 (D. Ariz. Dec. 23, 2009){ TA \l "Banchong v. Kane, 2009 U.S. Dist. LEXIS 127134 (D. Ariz. Dec. 23, 2009)" \s "Banchong v. Kane, 2009 U.S. Dist. LEXIS 127134 (D. Ariz. Dec. 23, 2009)" \c 1 } (citing 22 U.S.C. § 2705{ TA \s "22 U.S.C. § 2705" } as support for the statement that “passports [are] conclusive proof of citizenship.”); In re Villanueva, 19 I. & N. Dec. 101, 103 (B.I.A. 1984){ TA \s "Matter of Villanueva, Interim Decision #2968 (BIA 1984)" } (holding that “unless void on its face, a valid United States passport issued to an individual as a citizen of the United States […] constitutes conclusive proof of such person's United States citizenship.”).
B. Revocation of a Document Does Not Equate to Revocation of Status With the promulgation of 22 U.S.C. § 2705{ TA \s "22 U.S.C. § 2705" }, if the Department of
State discovers that a passport was "illegally, fraudulently, or erroneously obtained," the Secretary of State is authorized to cancel it. “But administrative cancellation of a citizen's passport, like administrative cancellation of a certificate of naturalization, shall affect only the document and not the citizenship status of the person in whose name the document was issued." Xia, 865 F.3d at 6512.{ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }
Lest any doubt remain, Congress passed 8 U.S.C. § 1504 in 1994 (coincidentally, the year of Ms. Muthana’s birth). Promulgated in response to the holding in Magnuson{ TA \s "Magnuson
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Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 26 of 52
v. Baker, 911 F.2d 330, n. 7 (9th Cir. 1990)" } and similar cases which found no right of the Department of State to revoke passports without a pre-deprivation hearing, § 1504{ TA \l "8 U.S.C. § 1504" \s "§ 1504" \c 2 } specifically makes clear that the Department of State is given the power only to revoke the document, not the status of the individual in question:
The cancellation under this section of any document purporting to show the citizenship status of the person to whom it was issued shall affect only the document and not the citizenship status of the person in whose name the document was issued. 8 U.S.C. § 1504(a){ TA \l "8 U.S.C. § 1504" \s "8 U.S.C. § 1504(a)" \c 2 }. This Circuit has in fact specifically clarified that the government cannot make an “end run” around the requirement of obtaining a judicial ruling, supported by clear and convincing evidence, in order to revoke citizenship: If the government were correct that a successful administrative challenge to a … passport on the ground that it was unlawfully procured sufficed to reveal the holder's true status as a noncitizen, obviating any need for judicial action under section 1451{ TA \l "8 U.S.C. §1451" \s "1451" \c 2 } to effect denaturalization, the precedents, the process provided by section 1451{ TA \s "1451" }, and the express preservation of citizenship status in sections 1504{ TA \s "8 U.S.C. § 1504(a)" } and 1453{ TA \l "8 U.S.C § 1453" \s "1453" \c 2 } would be illusory. Xia v. Tillerson, 865 F.3d 643, 654 (D.C. Cir. 2017){ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }. This requirement of judicial action for status, as opposed to documents, is true in all contexts of citizenship. “Section 1421{ TA \l "8 U.S.C. § 1421" \s "Section 1421" \c 1 } grants the Attorney General the power to naturalize individuals. 8 U.S.C. § 1421{ TA \s "Section 1421" }. It says nothing about denaturalization or cancellation of certificates of naturalization.” Id. at 656{ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }. “On the government's logic, anyone whose naturalization the government deemed invalidly obtained would not be protected by the requirement of a court order to denaturalize, but could instead be denaturalized administratively. No court of which we are aware has accepted the contention that, in such circumstances, judicial
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process is unnecessary.” Id. at 655{ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }. “The government's theory would appear to allow it to circumvent in every such case its burden to obtain a judicial denaturalization order, based on the theory that the naturalization was never valid to begin with.” Id. at 653-54{ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }. C. Ms. Muthana is Entitled to Declaratory Judgment of Her Continuing
Citizenship Status In the absence of a judicial ruling to the contrary, based on clear and convincing evidence, Ms. Muthana’s citizenship continues despite the prior revocation of her passport. “Assuming, as we must, that plaintiffs were naturalized United States citizens, they retain that citizenship status until the government obtains a court order vitiating it. Administrative actions alone are inadequate to extinguish any United States citizenship plaintiffs may have.” Xia, 865 F.3d at 655{ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }. She is, therefore entitled to a declaratory order from this Court recognizing her continuing status as a United States citizen. See, e.g., Chacoty, 285 F. Supp. 3d at 303{ TA \s "Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018)" }. As there has been no judicial order to the contrary after a showing of clear and convincing evidence, the citizenship evidenced by Ms. Muthana’s previous passports remains in existence. Ms. Muthana is, therefore, entitled to a declaratory action from this Court that she remains a United States citizen. D. The Public Statements of the Administration Officials Have No Legal Effect on Ms. Muthana’s Citizenship As referenced earlier and in the previous pleadings in this matter, both President Trump and Secretary of State Mike Pompeo have issued conclusory statements that Ms. Muthana is not a United States citizen. Neither has the authority to decide this, and their statements therefore have no legal effect on Ms. Muthana’s citizenship status.
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The Fourteenth Amendment{ TA \l "U.S. Const. amend. XIV" \s "Fourteenth Amendment" \c 7 } to the U.S. Constitution declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”21 The Constitution, therefore, grants the citizenship which is applicable here for Ms. Muthana. While the Department of State is vested with the authority to issue passports, it has never had the authority to revoke citizenship via administrative process, whether that citizenship is gained through naturalization or birthright.
VI. AS A UNITED STATES CITIZEN, MS. MUTHANA IS ENTITLED TO RETURN TO THE UNITED STATES EVEN WITHOUT A PASSPORT
A. Ms. Muthana Retains the Right to Re-Enter the United States, Passport or Not. Mandamus relief is appropriate in this matter. As a recognized U.S. citizen, Ms. Muthana
has a clear right to relief and is “entitled [to] constitutional protections even when abroad.” AlAulaqi v. Panetta, 35 F. Supp. 3d 56, 71 (D.D.C. 2014){ TA \s "Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 19 (D.D.C. 2010)" } (citing Reid v. Covert, 354 U.S. 1, 5-9 (1957){ TA \l "Reid v. Covert, 354 U.S. 1 (1957)" \s "Reid v. Covert, 354 U.S. 1, 5-9 (1957)" \c 8 }). Among the constitutional protections U.S. citizens possess is the absolute and unequivocal right to return back to the United States from overseas travel. See Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 67 (2001){ TA \l "Tuan Anh Nguyen v. I.N.S., 533 U.S. 53 (2001)" \s "Tuan Anh Nguyen v. I.N.S., 533 U.S. 53, 67 (2001)" \c 8 } (recognizing the absolute right of United States citizens to enter its borders and stating that citizens “have the right to return to this country at any time of their liking”); see also Worthy v. United States, 328 F.2d 386, 394 (5th Cir. 1964){ TA \l "Worthy v. United States, 328 F.2d 386 (5th Cir. 1964)" \s "Worthy v. United States, 328 F.2d 386, 394 (5th Cir. 1964)" \c 1 } (“it is inherent in the concept of
21 U.S. Const. Amend. XIV{ TA \l "U.S. Const. Amend. XIV" \s "U.S. Const. Amend. XIV" \c 7 }.{ TA \s "Fourteenth Amendment" }
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citizenship that the citizen, when absent from the country to which he owes allegiance, has a right to return, again to set foot on its soil”). Therefore, “governmental actions taken to prevent or impede a citizen from reaching the border infringe upon the citizen's right to reenter the United States.” Mohamed v. Holder, 995 F. Supp. 2d 520, 536-537 (D. Or. 2014){ TA \l "Mohamed v. Holder, 995 F. Supp. 2d 520 (D. Or. 2014)" \s "Mohamed v. Holder, 995 F. Supp. 2d 520, 536-537 (D. Or. 2014)" \c 1 }. While the Defendants argue that they do not have an affirmative duty to act in this matter, Defendants actually incurred an affirmative duty to protect Ms. Muthana and her son, due in part to the Defendants’ revocation of Ms. Muthana’s passport. As the Supreme Court has noted:
[W]hen the State by the affirmative exercise of its power so restrains an individual's liberty that it renders him unable to care for himself, and at the same time fails to provide for his basic human needs -- e. g., food, clothing, shelter, medical care, and reasonable safety -- it transgresses the substantive limits on state action set by the Eighth Amendment and the Due Process Clause. See Estelle v. Gamble, supra, at 103104; Youngberg v. Romeo, supra, at 315-316. The affirmative duty to protect arises not from the State's knowledge of the individual's predicament or from its expressions of intent to help him, but from the limitation which it has imposed on his freedom to act on his own behalf. See Estelle v. Gamble, supra, at 103.
Deshaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 200 (1989){ TA \l "Deshaney v. Winnebago County Dep't of Social Services, 489 U.S. 189 (1989)" \s "Deshaney v. Winnebago County Dep't of Social Services, 489 U.S. 189, 200 (1989)" \c 8 }.
The United States revoked Ms. Muthana’s passport, and because of this, any attempt Ms. Muthana would make to travel on the revoked passport would constitute a felony. See 18 U.S.C. § 1544. Ms. Muthana should not be forced to choose between subjecting herself to criminal penalty and her “fundamental right to have free ingress” back to the United States as a U.S. citizen. Worthy, 328 F.2d at 394. Even in circumstances where individuals are placed on the No Fly List while abroad, the United States must not prohibit their citizens on the No Fly List from returning back. See generally Latif v. Holder, 969 F. Supp. 2d 1293, 1298-1300 (D. Or. 2003){ TA \l "Latif
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v. Holder, 969 F. Supp. 2d 1293 (D. Or. 2003)" \s "Latif v. Holder, 969 F. Supp. 2d 1293, 1298-1300 (D. Or. 2003)" \c 1 } (U.S. government offered “one time” waivers to at least five U.S. citizen plaintiffs on the No Fly List so they could return to the United States). Therefore, because the Defendants revoked Ms. Muthana’s passport, the Defendants owe a duty to facilitate Ms. Muthana’s return to the United States, or else they will continue to unlawfully infringe upon her right as a U.S. citizen to reenter the country. See Mohamed, 995 F. Supp. at 537{ TA \s "Mohamed v. Holder, 995 F. Supp. 2d 520, 536-537 (D. Or. 2014)" }.
In addition, despite Defendants’ officials calling for other countries to repatriate their citizens detained in Syria,22 the aforementioned public statements by Defendants’ officials express an unwillingness of the Defendants to accept Ms. Muthana in any circumstance and act in accordance with their own proclamation.23 In this case, the Syrian Democratic Forces do not want to continue holding individuals like Ms. Muthana or her son, but have no choice as the United States is unwilling to recognize its duty to accept their arrival as citizens.24 Due to the Defendants’ refusal to allow her to return home, Ms. Muthana is unable to care for herself and her son.25 Accordingly, the Defendants have not only restrained Ms. Muthana’s liberty and the freedom to act on her own behalf by revoking her passport, but have also blocked Ms. Muthana’s right to
22 Robert Palladino, Press Statement, Foreign Terrorist Fighters in Syria, Department of State (Feb. 4, 2019), available at https://www.state.gov/r/pa/prs/ps/2019/02/288735.htm (“the United States calls upon other nations to repatriate and prosecute their citizens detained by the [Syrian Democratic Forces].”).
24 Vivian Yee, Thousands of ISIS Children Suffer in Camps as Countries Grapple With Their Fate, New York times (May 8, 2019), available at https://www.nytimes.com/2019/05/08/world/middleeast/isis-prisoners-childrenwomen.html?searchResultPosition=1 (“In overflowing camps in eastern Syria, the wives and children of ISIS fighters who fled the last shreds of ISIS territory are dying of exposure, malnutrition and sickness. Children are too spent to speak. Women who have renounced the group live in dread of attacks from those who have not.)”. 25 Id., “In overflowing camps in eastern Syria, the wives and children of ISIS fighters who fled the last shreds of ISIS territory are dying of exposure, malnutrition and sickness. Children are too spent to speak. Women who have renounced the group live in dread of attacks from those who have not.”
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return through public statements that prevent her repatriation, and thereby owes affirmative duties
to Ms. Muthana, including recognizing Ms. Muthana’s citizenship and facilitating Ms. Muthana’s
return to the United States.
Defendants also owe Ms. Muthana and her son the exercise of good faith efforts to secure
their release and return to the United States, pursuant to the requirements of the Fourth Geneva
Convention Relative to the Protections of Civilian Persons in Time of War.26 Under Articles 4
and 5 of the Fourth Geneva Convention, in the absence of evidence that Ms. Muthana or her young
son directly took part in armed hostilities or engaged in espionage, sabotage or other direct
hostilities, both Ms. Muthana and her young son are protected persons.27 As foreign nationals, Ms.
Muthana and her son have further protection under Article 48 of the Fourth Geneva Convention,
which states that “protected persons who are not nationals of the Power whose territory is occupied,
may avail themselves of the right to leave the territory subject to the provisions of Article 35, and
decisions thereon shall be taken according to the procedure which the Occupying Power shall
26 See www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf. Over 130 countries have signed the Geneva Conventions of 1949, including Syria, Iran, Turkey, Russia and the United States. The United States signed the Geneva Conventions in 1949, which were ratified by the Senate in 1955. Article 2 of that Convention specifies that it “shall apply to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.” In this case, the Syrian conflict at present has involved multiple High Contracting parties, including the United States, Iran, Russia, and Turkey, all of whom have engaged in armed hostilities within the context of this conflict; accordingly, the Syrian conflict constitutes armed conflict within the scope of the contract, to which the full scope of the Geneva Conventions. The United States Supreme Court has previously acknowledged the legitimacy of invoking the Geneva Convention in order to challenge wartime conduct and sustain fundamental liberties. See Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 164 L.Ed. 2d 723 (2006){ TA \l "Hamdan v. Rumsfeld, 548 U.S. 557 (2006)" \s "Hamdan v. Rumsfeld, 548 U.S. 557, 126 S.Ct. 2749, 164 L.Ed. 2d 723 (2006)" \c 8 } (recognizing that it is permissible for a foreign national to invoke the Geneva Conventions in order to challenge procedures used by military commissions during his criminal trial).
27 See Article 4, stating that “persons protected by the Convention are those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” See also Article 5, excepting persons “definitely suspected of or engaged in activities hostile to the security of the State,” and defining such persons as a “spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power.” www.un.org/en/genocideprevention/documents/atrocity-crimes/Doc.33_GC-IV-EN.pdf.
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establish in accordance with the said article.” Under Article 35, a detaining state is required to permit the departure of protected persons upon application, unless it is contrary to the security interests of the detaining state.28
While this Court has no jurisdiction over the detaining power, or authority to compel the Syrian Democratic Forces’ release of Ms. Muthana and her son, this Court may order the United States to use all reasonable and good faith efforts consistent with its treaty obligations under the Geneva Conventions to affect their return, as well as the obligations of the Defendants based on their statements and revocation of Ms. Muthana’s passport. This Court also has the authority to compel the Defendants to recognize that she is a U.S. citizen and their duty to accept U.S. citizens, like Ms. Muthana and her son, detained abroad.
As outlined in the foregoing, Plaintiff has a clear right to relief, based on the Defendant’s prior recognition of Ms. Muthana’s U.S. citizenship. Defendants have a clear duty to act, based in part on their actions in prohibiting Ms. Muthana’s rightful return to the United States and the resulting duties owed to her based on those actions, as well as their obligations under Geneva Conventions treaty obligations. Defendants are the only actors who are able to grant Ms. Muthana and her son the relief they seek. Therefore, in order to cure the infringement Defendants brought upon Ms. Muthana’s right to return to the United States, which resulted after Defendants revoked Ms. Muthana’s passport and through their statements preventing her repatriation, Plaintiff seeks a mandamus order of this Court compelling the Defendants to recognize Ms. Muthana as a U.S.
28 As Plaintiff stated previously (Dkt. 15 at 22), there is no reason to believe that the Syrian Democratic forces would oppose the departure of Ms. Muthana or her son upon application, as the Syrian Democratic forces repeatedly permitted journalists to interview Ms. Muthana so that she can communicate her desire to return to the United States. Allowing these interviews to occur is not consistent with a desire to retain her in the country for matters of security. Compare Doe v. Mattis, 889 F.3d 745, 748 (D.C. Cir. 2018){ TA \l "Doe v. Mattis, 889 F.3d 745 (D.C. Cir. 2018)" \s "Doe v. Mattis, 889 F.3d 745, 748 (D.C. Cir. 2018)" \c 4 } (holding that the Executive branch cannot transfer a United States citizen from one foreign nation to another, if the citizen seeks return to the United States).
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citizen and use all reasonable and good faith efforts to affect her return, which includes providing Ms. Muthana with transportation and travel documents to permit her reentry. Courts have compelled the Attorney General of the United States to facilitate the return for other persons who were prevented from returning to the United States while abroad. 29 The same duty of the Defendants is no less required here. B. Even if Section 1503 Does Apply in this Matter, it is Not an Exclusive Remedy.
Should this Court determines that the provisions of § 1503{ TA \s "8 U.S.C. § 1503(b) and (c)" } do apply to Ms. Muthana, § 1503{ TA \s "8 U.S.C. § 1503(b) and (c)" } is not an exclusive remedy. As noted by Defendants in their Motion, the United States Supreme Court in Rusk v. Cort recognized that plaintiffs who are out of the country and seek a judicial determination may do so without exhausting the provisions of § 1503(b) or (c). 369 U.S. at 379-80. The Supreme Court permitted this because the intent of subparts (b) and (c) was to prevent those with “spurious citizenship claims” to enter and litigate simply as a way of getting into the country. Id. For those seeking declaratory judgment while still outside the country, however, those actions are consistent with the intent of the statute, barring “clear and convincing” evidence that Congress intended otherwise. Id. The Supreme Court found just this clear and convincing evidence in the { TA \l "Califano v. Sanders, 430 U.S. 99 (1977)" \s "Califano v. Sanders, 430 U.S. 99 (1977)" \c 8 }Califano case, noting that Congress had specifically intended that administrative exhaustion occur in the
29 See Samirah v. Holder, 627 F.3d 652, 655 (7th Cir. 2010){ TA \l "Samirah v. Holder, 627 F.3d 652 (7th Cir. 2010)" \s "Samirah v. Holder, 627 F.3d 652, 655 (7th Cir. 2010)" \c 1 } (where the U.S. government wrongfully refused to allow an applicant to adjust his status from non-lawful resident to lawful resident the right to return to the United States so that he could adjust status, the appellate court remanded “case to the district court for the issuance of a mandamus commanding the Attorney General to take whatever steps are necessary to enable the plaintiff to reenter the United States for the limited purpose of reacquiring the status, with respect to his application for adjustment of status, that he enjoyed when he left the United States pursuant to the grant of advance parole later revoked. An order couched in terms of "take whatever steps are necessary" may seem vague. But the Attorney General has as we have indicated several means of compliance and we can let him decide which to employ to enable the plaintiff to return.”).
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limited scope of cases arising under the Social Security Act. Califano v. Sanders, 430 U.S. 99 (1977){ TA \s "Califano v. Sanders, 430 U.S. 99 (1977)" }. The facts of Califano{ TA \s "Califano v. Sanders, 430 U.S. 99 (1977)" } arose under the Social Security Act; the facts of this matter do not. The right to seek declaratory judgment without utilizing subparts (b) and (c) was again confirmed in Chacoty v. Tillerson: "Congress did not intend to foreclose lawsuits by claimants . . . who do not try to gain entry to the United States before prevailing in their claims to citizenship." 285 F. Supp. 3d 293, 303, n. 5 (D.D.C. 2018{ TA \s "Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018)" }) (Moss, J.) (noting that “Cort's holding that § 1503{ TA \s "8 U.S.C. § 1503(b) and (c)" } is not an exclusive remedy, however, remains good law”).
VII. IN THE ALTERNATIVE, PLAINTIFF SEEKS LEAVE TO AMEND TO ADDRESS § 1503 IN AN AMENDED COMLAINT. ANY SUCH AMENDMENT
WOULD BE IN THE INTERESTS OF JUSTICE AND NOT FUTILE. Should this Court find Defendants’ arguments compelling despite the arguments and authorities listed above, Plaintiff respectfully requests leave to amend his Complaint in order to clarify the claims and supporting facts in this matter, and to address any provisions of § 1503{ TA \s "8 U.S.C. § 1503(b) and (c)" } which this Court may deem relevant. Plaintiff makes this request in the alternative to the arguments and authorities set forth in the preceding portions of this Response in Opposition. A. Legal Standard Fed. R. Civ. Pro. 15(a){ TA \l "Fed. R. Civ. Pro. 15(a)" \s "Fed. R. Civ. Pro. 15(a)" \c 4 } provides that leave to amend should be freely given when justice requires. Polsby v. Thompson, 201 F. Supp. 2d 45, 51-52 (D.D.C. 2002){ TA \l "Polsby v. Thompson, 201 F. Supp. 2d 45 (D.D.C.
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2002)" \s "Polsby v. Thompson, 201 F. Supp. 2d 45, 51-52 (D.D.C. 2002)" \c 1 }. This Court has previously held that “when a court denies a motion to amend a complaint, the court must base its ruling on a valid ground and provide an explanation.” Id{ TA \s "Polsby v. Thompson, 201 F. Supp. 2d 45, 51-52 (D.D.C. 2002)" }. Accordingly, the burden is on the party opposing amendment to show that there is a reason to deny leave. In re Vitamins Antitrust Litigation, 217 F.R.D. 30, 32 (D.D.C. 2003){ TA \l "In re Vitamins Antitrust Litigation, 217 F.R.D. 30 (D.D.C. 2003)" \s "In re Vitamins Antitrust Litigation, 217 F.R.D. 30, 32 (D.D.C. 2003)" \c 1 }. The Supreme Court found an abuse of discretion where courts deny leave to amend, absent a satisfactory reason for doing so, such as “undue delay, bad faith or dilatory motive…repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party…[or] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962){ TA \l "Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962)" \s "Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962)" \c 8 }; see also Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205, 1208 (1996){ TA \l "Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205 (1996)" \s "Firestone v. Firestone, 316 U.S. App. D.C. 152, 76 F.3d 1205, 1208 (1996)" \c 8 } (“although the grant or denial of leave to amend is committed to a district court’s discretion, it is an abuse of discretion to deny leave to amend unless there is sufficient reason”). B. There is No Compelling Reason to Deny Leave to Amend Here
Plaintiff does not make this alternative request after much development in the case; this matter is still in its initial stages. The United States Court of Appeals for the District of Columbia previously held that “where an amendment would do no more than clarify legal theories or make technical corrections…delay, without a showing of prejudice is not a sufficient ground for denying the motion.” Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999){ TA \l "Harrison v. Rubin, 174
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F.3d 249, 253 (D.C. Cir. 1999)" \s "Harrison v. Rubin, 174 F.3d 249, 253 (D.C. Cir. 1999)" \c 1 }; see also Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996){ TA \l "Atchinson v. District of Columbia, 73 F.3d 418 (D.C. Cir. 1996)" \s "Atchinson v. District of Columbia, 73 F.3d 418, 426 (D.C. Cir. 1996)" \c 1 } (holding that in order to determine the severity of the delay, courts consider any resulting prejudice the delay may cause); Estate of Gaither v. District of Columbia, 272 F.R.D. 248, 252 (D.D.C. 2011){ TA \l "Estate of Gaither v. District of Columbia, 272 F.R.D. 248 (D.D.C. 2011)" \s "Estate of Gaither v. District of Columbia, 272 F.R.D. 248, 252 (D.D.C. 2011)" \c 1 } (“the mere passage of time does not preclude amendment—the delay must result in some prejudice to the judicial system or the opposing party”).
This Court has held that “delay without requisite prejudice is ordinarily insufficient to justify denial of leave to amend;” here, Plaintiff would seek only to clarify and update the claims in this matter. Dove v. Wash. Metro. Area Transit Auth., 221 F.R.D. 246, 249 (D.D.C. 2004){ TA \l "Dove v. Wash. Metro. Area Transit Auth., 221 F.R.D. 246 (D.D.C. 2004)" \s "Dove v. Wash. Metro. Area Transit Auth., 221 F.R.D. 246, 249 (D.D.C. 2004)" \c 1 }. Because a proposed amendment would still relate to and rely upon predominantly the same underlying facts as the original Complaint, this amendment does not substantially alter the nature or factual basis of Plaintiff’s claim, and will not significantly expand the scope of the litigation that Defendant must respond to. Brown v. FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010){ TA \l "Brown v. FBI, 744 F. Supp. 2d 120 (D.D.C. 2010)" \s "Brown v. FBI, 744 F. Supp. 2d 120, 123 (D.D.C. 2010)" \c 1 } (finding that “a court may deny leave to amend if the amendment bears ‘only [a] tangential relationship’ to the initial claim, which could unduly prejudice the opposing party by expanding the scope of the litigation”). Further, any potential prejudice created by that potential and minimal delay would not be significant where, as here, this case is still at an early stage of litigation. There is no risk of unduly
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increasing discovery or delaying trial, where no discovery has occurred and no trial has been set. Heller v. District of Columbia, No. 08-1289, 2013 U.S. Dist. LEXIS 38833, at *8 (D.D.C. Mar. 20, 2013){ TA \l "Heller v. District of Columbia, No. 08-1289, 2013 U.S. Dist. LEXIS 38833, at *8 (D.D.C. Mar. 20, 2013)" \s "Heller v. District of Columbia, No. 08-1289, 2013 U.S. Dist. LEXIS 38833, at *8 (D.D.C. Mar. 20, 2013)" \c 1 } (“A case’s position along the litigation path proves particularly important in that [hardship] inquiry: the further the case has progressed, the more likely the opposing party is to have relied on the unamended pleadings.”).
This alternative request is further not brought in bad faith or for dilatory motive. “Preventing a party from amending [his] complaint on the basis of bad faith generally requires an affirmative showing by the nonmoving party,” and this typically “entails a showing that ‘the proposed amendments are similar to already-rejected claims or otherwise unlikely to succeed on their face.” Bronner v. Duggan, 324 F.R.D. 285, 292-93 (D.D.C. 2018){ TA \l "Bronner v. Duggan, 324 F.R.D. 285 (D.D.C. 2018)" \s "Bronner v. Duggan, 324 F.R.D. 285, 292-93 (D.D.C. 2018)" \c 1 }. No such circumstances exist here. Accordingly, should this Court not be persuaded by the arguments set forth in the earlier sections, Plaintiff respectfully requests leave to amend his pleading in this matter. C. Amendment under § 1503 Would Not Be Futile. For the reasons set forth below, allowing leave to amend Plaintiff’s Complaint to reflect any relevant provisions of § 1503{ TA \s "8 U.S.C. § 1503(b) and (c)" } would not be futile.
1. Ms. Muthana is, and was, out of the country; therefore, § 1503(a) does not apply to her. Section 1503(a){ TA \s "8 U.S.C. § 1503(b) and (c)" } applies to “any person who is within the
United States claims a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he
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is not a national of the United States” and allows those individuals to bring claims in the federal courts after exhausting the administrative process contained within 8 U.S.C. § 1503(a){ TA \s "8 U.S.C. § 1503(b) and (c)" }. At the time the Department of State revoked Ms. Muthana’s passport, she had already been out of the country for approximately two years. Doc. 1; Ex. A. Accordingly, the provisions contained within 8 U.S.C. § 1503(a){ TA \s "8 U.S.C. § 1503(a)" } do not apply to Ms. Muthana’s situation.
2. As Ms. Muthana is seeking declaratory relief prior to attempting to enter the United States, she need not utilize § 1503(b) or (c). As noted in Section 6(b), supra, the provisions of § 1503 are not exclusive remedies.
Plaintiff hereby incorporates by references the citations and authorities included above, which demonstrate that Plaintiff could seek declaratory relief without utilizing the provisions of § 1503.
3. Even if she were required to utilize § 1503(b) or (c), administrative exhaustion under these circumstances would be futile. Even if § 1503 were an exclusive remedy despite the authority to the contrary cited above,
this matter still fits an exception to a plaintiff’s requirement to exhaust his or her administrative remedies, under the futility exception, “when following the administrative remedy would be futile because of certainty of an adverse decision.” Abigail Alliance for Better Access to Dev. Drugs v. McClellan, 2004 U.S. Dist. LEXIS 29594 (D.D.C. Aug. 30, 2004) at *17{ TA \l "Abigail Alliance for Better Access to Dev. Drugs v. McClellan, 2004 U.S. Dist. LEXIS 29594 (D.D.C. Aug. 30, 2004) at *17" \s "Abigail Alliance for Better Access to Dev. Drugs v. McClellan, 2004 U.S. Dist. LEXIS 29594 (D.D.C. Aug. 30, 2004) at *17" \c 1 } (citing Randolph-Sheppard Vendors of America v. Weinberger, 254 U.S. App. D.C. 45, 795 F.2d 90, 105 (D.C. Cir. 1986){ TA \l "Randolph-Sheppard Vendors of America v. Weinberger, 254 U.S. App. D.C. 45, 795 F.2d 90, 105 (D.C. Cir. 1986)" \s "RandolphSheppard Vendors of America v. Weinberger, 254 U.S. App. D.C. 45, 795 F.2d 90, 105 (D.C. Cir. 1986)" \c
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1 }). A future adverse decision is regarded as certain if the agency “has articulated a very clear position on the issue which it has demonstrated it would be unwilling to reconsider.” Abigail Alliance, 2004 U.S. Dist LEXIS 29594 at *17{ TA \s "Abigail Alliance for Better Access to Dev. Drugs v. McClellan, 2004 U.S. Dist. LEXIS 29594 (D.D.C. Aug. 30, 2004) at *17" } (quoting Randolph-Sheppard, 795 F.2d at 105). In other words, the exception applies when there is “objective and undisputed evidence of administrative bias” (Artis v. Greenspan, 223 F. Supp. 2d 149, 154-55 (D.D.C. 2002){ TA \l "Artis v. Greenspan, 223 F. Supp. 2d 149 (D.D.C. 2002)" \s "Artis v. Greenspan, 223 F. Supp. 2d 149, 154-55 (D.D.C. 2002)" \c 1 }), or an “indication that resort to the administrative process would be ‘clearly useless.’” Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d. 18, 23 (D.D.C. 2000){ TA \l "Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d. 18 (D.D.C. 2000)" \s "Coleman v. Pension Benefit Guar. Corp., 94 F. Supp. 2d. 18, 23 (D.D.C. 2000)" \c 1 } (quoting Communications Workers of America v. American Tel. & Tel. Co., 309 U.S. App. D.C. 170, 40 F.3d 426, 431 (D.C. Cir. 1994){ TA \l "Communications Workers of America v. American Tel. & Tel. Co., 309 U.S. App. D.C. 170, 40 F.3d 426 (D.C. Cir. 1994)" \s "Communications Workers of America v. American Tel. & Tel. Co., 309 U.S. App. D.C. 170, 40 F.3d 426, 431 (D.C. Cir. 1994)" \c 1 }). In this case, Plaintiff easily satisfies this standard: the multiple statements of Defendants’ officials that Ms. Muthana is not a U.S. citizen and does not even has the right to travel to the United States irrefutably demonstrates futility. These clear statements include the following:
• On February 20, 2019, the United States Department of State issued a press release stating that “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted into the United States. She does not have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.”30
30 Press Release dated February 20, 2019, located on Department of State website (https://www.state.gov/secretary/remarks/2019/02/289558.htm) (last visited May 7, 2019).
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• That same day, President Donald J. Trump tweeted that he has “instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!”31
• Secretary of State Michael Pompeo then appeared on national television, proclaiming that Hoda Muthana “is a terrorist. She is not a United States citizen. She ought not return to this country” and also stating that “she is not a U.S. citizen, nor is she entitled to U.S. citizenship” because “you have to consider the context.”32
These multiple statements by Defendants provide objective evidence of administrative bias, a very clear position on the issue, and a position on which the government has demonstrated its unwillingness to reconsider.
Courts evaluating futility may also consider whether "the litigant's interests in immediate judicial review outweigh the government's interests in the efficiency or administrative autonomy that the exhaustion doctrine is designed to further." Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004){ TA \l "Avocados Plus Inc. v. Veneman, 370 F.3d 1243 (D.C. Cir. 2004)" \s "Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247 (D.C. Cir. 2004)" \c 1 } (quoting McCarthy v. Madigan, 503 U.S. 140, 146, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992){ TA \l "McCarthy v. Madigan, 503 U.S. 140 (1992)" \s "McCarthy v. Madigan, 503 U.S. 140, 146, 112 S. Ct. 1081, 117 L. Ed. 2d 291 (1992)" \c 8 }). As Ms. Muthana is in a precarious position under the authority of Kurdish forces, and her young son is in poor health,33 the litigants’ interests here in proceeding outweigh the government’s interests in a futile administrative exercise. Accordingly, Defendants’ Motion to Dismiss fails due to the futility of Plaintiff pursuing the remedies provided under 8 U.S.C. §
31 https://twitter.com/realdonaldtrump/status/1098327855145062411?s=21 (dated February 20, 2019) (last visited May 7, 2019). 32 https://www.today.com/video/mike-pompeo-on-hoda-muthana-she-is-not-a-us-citizen-1446009923715 (dated February 21, 2019) (last visited May 7, 2019).
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1503(b){ TA \s "8 U.S.C. § 1503(b) and (c)" }, as demonstrated by the public and unambiguous statements of Defendants’ own officials.34
4. As Ms. Muthana Can Establish a Prima Facie Showing in a Judicial Proceeding Under § 1503, Defendants Will Need To Show Clear and Convincing Evidence That She Is Not A Citizen. They Will Be Unable To Do So.
Section 1503{ TA \s "8 U.S.C. § 1503(b) and (c)" } provides for judicial review of denial of any "right or privilege" of citizenship, including invalidations of passports or naturalization certificates.
Xia, 865 F.3d at 655{ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }. The initial burden is on the plaintiff, but only to show a prima facie case: “the minimal initial showing the statute
requires of a plaintiff to trigger the government's proof burden” can be met by “[p]resenting proof
of a naturalization certificate or passport—even if already administratively cancelled” which then
triggers the government’s “burden to establish by "clear, unequivocal, and convincing evidence"
the plaintiff's lack of entitlement to the disputed "right or privilege" of citizenship.” Id. at 656{ TA \s "Xia v. Tillerson, 865 F.3d 643, 656 (D.C. Cir. 2017)" }. To do so, the government will have to override its own earlier decision.
a. Diplomatic Immunity Did Not Apply to Plaintiff at the Time of Ms. Muthana’s Birth.
As previously discussed above, the Department of State considered and ultimately rejected
the idea that Mr. Muthana was still serving as a diplomat at the time of Ms. Muthana’s birth. See
Doc. 1-5. In its review at the time closest to Ms. Muthana’s birth, the Department of State
34 Even if Defendants demonstrated a willingness to reconsider their position as to Hoda Muthana’s citizenship, which is not the case here for the reasons set forth above, 8 U.S.C. § 1503 is not an applicable administrative avenue to Ms. Muthana’s specific circumstances. Under 8 U.S.C. § 1503(a), persons must be within the United States to claim a right or privilege as a national of the United States, so this section does not apply to Ms. Muthana as she is not currently in the country. Additionally, 8 U.S.C. § 1503(b) is not realistic or practical for Ms. Muthana to pursue, given the current situation in Syria and the inability for her to visit a diplomatic or consulate office in the foreign country she currently resides, which is Syria. In any event, Defendants demonstrated their unwillingness to reconsider whether Ms. Muthana is a citizen as evidenced by the unequivocal statements of Defendants’ officials, and therefore would not grant Ms. Muthana a Certificate of Identity.
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determined that Mr. Muthana was not serving as a diplomat at the time of her birth, and was not covered by diplomatic immunity. Id. Defendants produce with their instant Motion several documents which they purport to be “conclusive” and “contemporaneous” but which were, in fact., attested to and compiled more than twenty years after Ms. Muthana’s birth. Doc. 19-2. As previously noted in the Magnuson case, “Congress in section 1451{ TA \s "1451" } has precluded revocation merely on the basis of having "second thoughts." Magnuson, 911 F.2d at 335{ TA \s "Magnuson v. Baker, 911 F.2d 330, n. 7 (9th Cir. 1990)" }. That is simply all the Department of State demonstrated in its January 2016 letter, and all the Defendants attempt now: second thoughts, based on no new evidence which was not available closer to the time in question and at the time of the original decision.
As stated above, it is undisputed that Mr. Muthana was fired from his diplomatic position in June 1994. Doc. 19-2 at p. 12 (“Fired 6/94 SEE CARRDEX”). On June 2, 1994, the Yemeni Ambassador Al-Aashtal required Mr. Muthana to surrender his diplomatic identity card. Doc. 1 at 6; see also Ex. A. Mr. Muthana’s diplomatic position officially ended no later than September 1, 1994. Doc. 19-2 at pp. 5, 14; see also Doc. 1-5. Sometime after his termination, the United States Mission to the United Nations received notice of both Mr. Muthana’s June termination and his official end date of September 1, 1994. The documents Defendants produce contain an unclear combination of handwritten notice added at unverifiable times, which list self-contradictory dates for the end of Mr. Muthana’s position ranging from “fired 6/94” (Doc. 19-2 at 9 and 12) to February 6, 1995 as a notification date (Doc. 19-2 at 14), to February 10, 1995 (id.) to numerous references to a September 1, 1994 end date for his position (the only one which matches with other diplomats from Yemen, whose positions at the UN ended at or near the same time) (Doc. 19-2 at 9, 11, 12, 14). This hardly equates to “clear and convincing” reason to doubt the 2004
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determination by the United States Mission to the United Nations that Mr. Muthana’s position did in fact end on September 1, 1994. Doc. 1-5.
b. This Court, and Plaintiff, are Not Bound to Accept the Determination of the State Department on Immunity in this Situation.
This Court, and Plaintiff, are not obligated to accept the determination made by the Defendants regarding Mr. Muthana’s diplomatic status, particularly when the Department of State documents contradict themselves and the Department of State’s own prior determination. See Ali v. Dist. Dir., 743 Fed. Appx. 354, 358 (11th Cir. 2018){ TA \l "Ali v. Dist. Dir., 743 Fed. Appx. 354 (11th Cir. 2018)" \s "Ali v. Dist. Dir., 743 Fed. Appx. 354, 358 (11th Cir. 2018)" \c 1 } (noting that parties dispute the diplomatic records produced by USCIS, and deferring to the determination made after a full trial on the merits). And while Defendants assert in this matter that the date of receipt of notification is what is important for determining immunity, they have previously argued the opposite. See Raya v. Clinton, No. 09-cv-00169-GEC{ TA \l "Raya v. Clinton, No. 09-cv-00169GEC" \s "Raya v. Clinton, No. 09-cv-00169-GEC" \c 1 }, March 5, 2010 Reply Brief of Government, Doc. 31 (“accordingly, the date of termination for purposes of privileges and immunities under the Vienna Convention is controlled in this case by the date of termination reported by the Egyptian Embassy to the Department of State” and “thus, applying the plain language of the Vienna Convention, Plaintiff’s father maintained privilege and immunities until the date the Egyptian Embassy reported as his termination date”) (emphasis added) (attached hereto as Exhibit B).
Furthermore, the Government’s own documentation states that the US Mission to the United Nations’ “Blue List” of resident foreign diplomats entitled to diplomatic immunity, on which Defendants rely in this matter, “should be viewed as a resource, but not the definitive source of information.” Ex. C, 7 FAM 1116.2-3(b), Resident Representatives to and Officials of the
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United Nations, Acquisition and Retention of U.S. Citizenship and Nationality. At the least, Defendants cannot demonstrate “clear and convincing evidence” that Ms. Muthana is not a birthright citizen; at worst, Defendants demonstrate exactly why courts do not permit the government to simply disregard citizenship due to “second thoughts.” Magnuson, 911 F.2d at 335.
Finally, Defendants exert great time and effort in their Motion attempting to refute a hypothetical used by counsel for Plaintiff at a prior hearing in this matter. Doc. 19 at 27-29. The net result of these efforts, however, is not to negate the value of the hypothetical discussed at length in Defendants’ Motion but to fail to provide more than their own extended hypotheticals in a series of responses. Sticking to the realities of the world in which the relevant laws must be applied, it is clear that diplomatic immunity is tied to duties of a position, not to timeliness of receipt of notification. As discussed above, Defendants have previously adhered to the importance of the duties and positions, until this case.
VIII. DEFENDANTS ARE PREVENTED BY ESTOPPEL FROM NOW DISPUTING MS. MUTHANA’S CITIZENSHIP
The U.S. government should be equitably estopped from disputing Ms. Muthana’s previously recognized citizenship based on its earlier determination. The doctrine of estoppel requires a showing that: (1) there was a “definite” representation to the party claiming estoppel; (2) the party relied on its adversary’s conduct to his detriment; and (3) the reliance on the representation was “reasonable.” Graham v. SEC, 222 F.3d 994, 1007, 343 U.S. App. D.C. 57 (D.C. Cir. 2000){ TA \l "Graham v. SEC, 222 F.3d 994 (D.C. Cir. 2000)" \s "Graham v. SEC, 222 F.3d 994, 1007, 343 U.S. App. D.C. 57 (D.C. Cir. 2000)" \c 1 }. Equitable estoppel is available against the government in the extraordinary circumstances presented here. The case for estoppel against the government requires proof of both the traditional elements of the doctrine as well as "a showing
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of an injustice . . . and lack of undue damage to the public interest.” Hertzberg v. Veneman, 273 F. Supp 2d 67, 83,{ TA \l "Hertzberg v. Veneman, 273 F. Supp 2d 67" \s "Hertzberg v. Veneman, 273 F. Supp 2d 67, 83," \c 1 } quoting ATC Petroleum, Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988){ TA \l "Inc. v. Sanders, 860 F.2d 1104 (D.C. Cir. 1988)" \s "Inc. v. Sanders, 860 F.2d 1104, 1111 (D.C. Cir. 1988)" \c 1 }. A showing of injustice requires a demonstration that the government and/or its agents “engage[d]—by commission or omission—in misrepresentation or concealment, or, at least, behave[d] in ways that have or will cause an egregiously unfair result.” Grumman Ohio Corp. v. Dole, 776 F.2d 338, 347 (D.C. Cir. 1985) (quoting General Accounting Office v. General Accounting Office Personnel Appeals Board, 225 U.S. App. D.C. 350, 698 F.2d 516, 526 n.57 (D.C. Cir. 1983)).
As set forth above, the United States, in recognition of Ms. Muthana’s birthright citizenship, granted Ms. Muthana a United States passport in January 2005, and later renewed that passport in 2014. Prior to issuing her a passport, the U.S. was necessarily aware of Mr. Muthana’s prior diplomatic post, and the fact that Yemen had delayed in its duty to notify the United States Permanent Mission to the United Nations of Mr. Muthana’s termination, because the office that in 2004 certified his termination date is the same office to which Yemen would have made the notification. Regardless, the United States accepted the proof of termination provided by Mr. Muthana and issued the passport without further inquiry or dispute. Issuing this passport constituted a recognition of Ms. Muthana’s status as a United States citizen. Mr. Muthana and his daughter relied on this representation, and as a result did not take further action to procure or clarify her status in the United States, as they would have otherwise, and as they did for their older children. There is no evidence to suggest that Mr. Muthana or his daughter (who was a minor at the time) acted in bad faith or presented anything but accurate information to the United States. Mr. Muthana
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simply procured a letter from his previous employer, indicating his termination date, and relied on the U.S. government’s determination that this was sufficient.
Conversely, the actions of the U.S. are in bad faith and would create an injustice which does not serve the public interest. The U.S. was aware of all relevant facts at the time that they issued Ms. Muthana a passport in 2005. They failed to raise a specific objection, precluding Mr. Muthana from applying for legal residency, and later, naturalization for his daughter, as he and his spouse did for their older children, who were born prior to their father’s loss of diplomatic status. Instead, Mr. Muthana was left with no reason to believe that this process was necessary for Ms. Muthana. The timing of the United States’ objection to Ms. Muthana’s citizenship further demonstrates bad faith. The government did not raise objections to her citizenship until over a year after Ms. Muthana left the United States, and had allegedly associated herself with ISIS. It was only at this point that the government sought to revisit its previous determination, despite the absence of any new or material facts underlying its previous decision.
In the context of determinations of citizenship under Section 2705, in conjunction with the issuance of a passport, the Ninth Circuit recognized that relief through collateral estoppel was appropriate in Magnuson v. Baker, 911 F.2d 330, n. 12 (9th Cir. 1989). The facts in Magnuson are remarkably similar to the facts presented here. In Magnuson, the plaintiff applied to the State Department for a passport on the basis of his father’s citizenship in the United States. His application was initially rejected; thereafter, the plaintiff submitted additional documents and the passport office, after consideration of these documents, determined that the plaintiff was in fact a U.S. citizen entitled a passport. Subsequently, it was discovered that the plaintiff was wanted in Canada for a conviction of tax evasion. After the discovery, the INS attempted to revoke his passport and deport him as a noncitizen to Canada. The plaintiff filed suit contesting the revocation
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of his passport and underlying citizenship. In overruling the Secretary of State’s revocation of his citizenship, the court found that a determination under Section 2705 was “conclusive proof of citizenship,” which the INS could not collaterally attack. Analogizing the determination of citizenship under 2705 to a “final civil determination,” which could not be reopened absent “exceptional circumstances such as fraud or misrepresentation,” and finding that by limiting revocation of a certificate to cases of fraud or misrepresentation, Congress had likewise “limited successful collateral attacks on citizenship determination.” Id. Congress may not revoke citizenship merely on the basis of having “second thoughts.” Magnuson, 911 F.2d at 335. That is exactly what the government attempts to do here through its attempt to revisit the earlier decision to issue a passport without evidence of fraud or misrepresentation.
Although Ms. Muthana’s case has garnered a significant amount of public attention, hers is not the only case where the United States, if permitted, could seek to rescind its earlier determination of citizenship, without new facts, and without the proper judicial proceeding. Allowing the U.S. government to reconsider and revoke prior findings of citizenship without new facts or adequate due process opens the door for the United States to utilize citizenship and the rights it entails as a weapon against the unpopular and the undesirable.
IX. PLAINTIFF AHMED MUTHANA PROPERLY BRINGS A CLAIM SEEKING DECLARATORY JUDGMENT AS TO MATERIAL SUPPORT
Defendants assert that Plaintiff Ahmed Muthana has no standing to bring the claim for declaratory judgment which he asserts on his own behalf regarding a potential violation of 18 U.S.C. § 2339B if he provides financial support for his daughter and grandson. Defendants ask this Court to dismiss this claim for lack of subject matter jurisdiction under Fed. R. Civ. P. 12(b)(1).
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However, Plaintiff has alleged, and his Declaration supports, that he brings this claim based on a live controversy which impacts him directly, and is not seeking an advisory opinion. A. Defendants Erroneously Dispute Plaintiff’s Claims While Asking for Dismissal.
In asking this Court to dismiss Plaintiff’s claims seeking declaratory judgment that he will not violate 18 U.S.C. § 2339B, Defendants repeatedly dispute the factual assertions made by Plaintiff. Doc. 19 at 40-42 (“Plaintiff claims that Muthana is no longer a member of ISIS, has ceased support for ISIS, and would use any money Plaintiff provided her to travel … but provides no support whatsoever for these assertions”). However, that is not an appropriate approach when seeking dismissal under Rule 12. In evaluating a motion to dismiss brought under Rule 12(b)(1), courts must "accept as true all of the factual allegations contained in the complaint." Wilson, 269 F.R.D. at 11. Reviewing courts are instructed to “review the complaint liberally while accepting all inferences favorable to the plaintiff.” Nattah, 770 F. Supp. 2d at 199. In other words, a reviewing court “assumes the truth of the allegations made and construes them favorably to the pleader.” Empagran, 315 F.3d at 343. Furthermore, courts may also consider relevant materials outside the pleadings in evaluating a motion to dismiss brought under Fed. R. Civ. P. 12(b)(1). Settles, 429 F.3d at 1107. Mr. Muthana’s Declaration, then, and the documentation attached to it sufficiently support the allegations contained in Count 9 of the Complaint that Plaintiff should be allowed to proceed. He identifies, for example, the communications directly from his daughter via a handwritten letter received last month, his communications with the FBI warning him that providing money to his daughter would constitute material support, and his communications with the psychiatrist who recently saw his daughter and grandson, regarding their needs and what she was informed by the FBI regarding providing money or items to them. Ex. A, Declaration of Ahmed Muthana.
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B. There Exists a Live Controversy. Defendants erroneously claim there is no live dispute, and that this claim is merely
hypothetical. That, however, disregards the facts as pled and Mr. Muthana’s statements to date. A dispute om which a plaintiff seeks relief must be "actual or imminent” to be appropriate. Wultz v. Islamic Republic of Iran, 755 F. Supp. 2d 1, 10 (D.D.C. 2010). Plaintiff Ahmed Muthana would have sent money already to his daughter and grandson, for their basic needs such as medication and shoes, were it not for the fact that Mr. Muthana has been informed by United States government agents that if he sends any money to his daughter he will be providing material support for terrorism in violation of 18 U.S.C. 2339B. Ex. A. There continues to be a need on the part of his daughter and grandson, which based on recent communications from the psychiatrist who visited her, and the sole handwritten letter he has received from his daughter since she has been interred at Camp Roj, is rapidly increasing in both degree and risk. Ex. A. Mr. Muthana remains willing to provide support for the survival of his daughter and grandson, but cannot do so without a declaration that, under the exact conditions present currently, he would not be in violation of 18 U.S.C. 2339B.
While it is difficult to conceive how internment at a camp not run by ISIS or its supporters, where Ms. Muthana has now repeated disavowed ISIS and advised others to stay away, and which would clearly go to survival needs of Ms. Muthana and her young son and his health condition, the government still apparently stands by this approach. Doc. 19 at 40. Therefore, Defendants’ own motion demonstrates the very real risk to Plaintiff should he try to provide medication, clothing or other basic needs while his daughter continues her quest to return to the United States with her son. Plaintiff does not need to commit an act which he has been told by authorities may be a crime in order to find out if it is.
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C. Plaintiff’s Request Relates Directly to Ms. Muthana’s Constitutional Right to Return. As Plaintiff has consistently stated in filings in this matter, including his Complaint and
Memorandum of Law in support of the Complaint (Doc. 15), he wishes to provide assistance to his daughter and grandson to assist with his daughter’s exercise of her constitutional right to return to the United States. This fits within the framework contemplated in Holder v. Humanitarian Law Project, 561 U.S. 1, 25 (2010) (holding that “with respect to these claims that gradations of fact or charge would make a difference as to criminal liability, and so adjudication of the reach and constitutionality of the statute must await a concrete fact situation”) (quoting Zemel v. Rusk, 381 U.S. 1, 20 (1965)). Despite Defendants’ assertions to the contrary, the very case cited as support in Defendants’ Motion demonstrates that this is exactly the sort of constitutional interest which conflicts with “a credible threat of prosecution made thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979) (holding that where the “plaintiff has alleged an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder, he ‘should not be required to await and undergo a criminal prosecution as the sole means of seeking relief’”), quoting Doe v. Bolton, 410 U.S. 179, 188 (1973); cf. Doc. 19 at 47.
CONCLUSION
For the reasons set forth above, Plaintiff Ahmed Ali Muthana, on behalf of himself and as Next Friend for his daughter Hoda Muthana and his grandson Minor John Doe (A.M.) prays that this Court grant the relief requested herein, in the form of declaratory relief that Ms. Muthana is a United States citizen and retains that presumption of citizenship unless and until proven otherwise by clear and convincing evidence in a judicial proceeding; declaratory relief that Minor John Doe is entitled to a presumption of citizenship; injunctive relief preventing the United States from
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taking any further action to revoke the citizenship of Ms. Muthana or, by acquisition, the presumed citizenship of Minor John Doe; mandamus relief compelling the United States to use all reasonable and good faith efforts to affect the return of Ms. Muthana and her young son to the United States; and declaratory relief that Plaintiff Ahmed Ali Muthana will not violate § 2339B by providing funds to his daughter for the return of his daughter, with his grandson, to the United States, or for their necessary survival while they await the ability to exercise this constitutional right to return.

Respectfully submitted,

/s/_Charles D. Swift
Charles D. Swift D.C. ID No. 987353 Texas Bar No. 24091964
cswift@clcma.org Christina A. Jump D.C. ID No. TX151 Texas Bar No. 00795828 cjump@clcma.org Constitutional Law Center for Muslims in America 833 E. Arapaho Rd, Suite 102 Richardson, TX 75081 Phone: (972) 914-2507 Fax: (972) 692-7454

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Case 1:19-cv-00445-RBW Document 24 Filed 05/10/19 Page 52 of 52 CERTIFICATE OF SERVICE
The undersigned counsel hereby affirms that the foregoing will be served on all counsel of record via ECF filing on this 28th day of February, and served on all listed Defendants.
/s/_Charles D. Swift
Charles D. Swift
47

 
 United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 15, 2020

Decided January 19, 2021

No. 19-5362

AHMED ALI MUTHANA, INDIVIDUALLY, AND AS NEXT FRIEND OF HODA MUTHANA AND MINOR JOHN DOE, APPELLANT

v.

MICHAEL R. POMPEO, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE DEPARTMENT OF STATE, ET AL.,
APPELLEES

Appeal from the United States District Court for the District of Columbia (No. 1:19-cv-00445)

Christina A. Jump argued the cause for appellant. With her on the briefs was Charles D. Swift.
Scott G. Stewart, Deputy Assistant Attorney General, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Joseph H. Hunt, Assistant Attorney General, William C. Peachey, Director, Office of Immigration Litigation, Anthony D. Bianco, Senior Litigation Counsel, Christopher A. Bates, Senior Counsel, and Joseph F. Carilli Jr., Trial Attorney.

2
John C. Eastman and Anthony T. Caso were on the brief for amicus curiae Center for Constitutional Jurisprudence in support of appellees.
Before: TATEL and RAO, Circuit Judges, and SENTELLE, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge RAO.
Opinion concurring in the judgment filed by Circuit Judge TATEL.
RAO, Circuit Judge: Hoda Muthana grew up in the United States, but at age twenty left college to join the Islamic State of Iraq and Syria (“ISIS”). After marriage to two different ISIS fighters, Hoda now seeks to return to the United States with her son, John Doe. The State Department maintains that Hoda is not a citizen and has no right to return to the United States. Hoda’s father, Ahmed Ali Muthana (“Muthana”), initiated this lawsuit on behalf of his daughter and grandson to settle their citizenship. The district court held that Hoda and her son are not U.S. citizens, because Hoda’s father possessed diplomatic immunity when she was born in the United States, rendering her ineligible for citizenship by birth under the Fourteenth Amendment and her son ineligible for citizenship under 8 U.S.C. § 1401(g). We affirm the district court. A child born in the United States to a foreign diplomat is not born “subject to the jurisdiction” of the United States and thus not entitled to citizenship by birth under the Fourteenth Amendment. Hoda Muthana is not now and never was a citizen of the United States because her father enjoyed diplomatic immunity pursuant to the Vienna Convention on Diplomatic Relations when she was born, and she was never naturalized. Because Hoda is not a citizen, neither is her son, who was born abroad to two alien parents.

3
Muthana also sought mandamus relief to compel the United States to assist in bringing Hoda and John Doe back to the United States; however, we have no jurisdiction over such a claim and it must be dismissed. Finally, Muthana sought a declaratory judgment that if he sent money and supplies to his daughter and grandson, he would not violate the prohibition on providing material support for terrorism, 18 U.S.C. § 2339B. We agree with the district court that Muthana did not establish standing because he failed to allege a personal injury to his constitutional rights.
I.
Ahmed Ali Muthana served as the First Secretary of the Permanent Mission of Yemen to the United Nations. During this posting he lived in New Jersey with his wife and children. The United Nations notified the State Department of Muthana’s appointment in October 1990, thus entitling him to diplomatic-level immunity pursuant to the U.N. Headquarters Agreement and the Vienna Convention on Diplomatic Relations, Apr. 18, 1961, 23 U.S.T. 3227 (the “Vienna Convention”).1 After several years, Yemen terminated Muthana from his diplomatic post and required him to surrender his diplomatic credentials no later than September 1, 1994. In October 1994,2 Hoda Muthana was
1 The United States accords diplomats stationed at U.N. missions the same privileges and immunities as diplomats stationed at embassies and consulates. See Agreement Between the U.S. and U.N. Respecting the Headquarters of the U.N., June 26, 1947, 61 Stat. 3416; Convention on Privileges and Immunities of the U.N., Feb. 13, 1946, 21 U.S.T. 1418. The State Department certified that Muthana possessed “diplomatic agent level immunity.” J.A. 18.
2 As the precise date of Hoda’s birth is immaterial to the legal questions, we omit it here in order to protect her privacy.

4
born in New Jersey to Muthana and his wife, neither of whom was an American citizen at the time. On February 6, 1995, the United Nations notified the State Department that Yemen had terminated Muthana from his diplomatic post. Muthana and his wife, as well as Hoda’s older siblings, eventually became naturalized citizens. Hoda, however, was never naturalized as a U.S. citizen. Muthana applied for a U.S. passport on behalf of Hoda, which the State Department issued in 2005 and then renewed in 2014.
Later in 2014, Hoda dropped out of college, traveled to Syria, and joined ISIS. Hoda became a prominent spokeswoman for ISIS on social media, advocating the killing of Americans and encouraging American women to join ISIS. She also married two ISIS fighters in succession and had a child, John Doe, by way of her second husband, who was an ISIS fighter from Tunisia. In 2016, the State Department revoked Hoda’s passport after determining that it had been issued in error because Hoda was not a U.S. citizen by birth and had never been naturalized. In a letter sent to Hoda’s last known address, the State Department informed her of the passport revocation and explained that the passport had been issued based on an error of fact—the government’s mistaken belief that at the time of Hoda’s birth, Muthana no longer possessed diplomatic immunity. In fact, Muthana retained his diplomatic immunity until at least February 6, 1995, months after Hoda’s birth. As the State Department explained, a child born to a diplomat is not “subject to the jurisdiction” of the United States, and therefore does not have citizenship by birth. U.S. CONST. amend. XIV, § 1. Muthana received the letter and sent a response asserting his daughter is a U.S. citizen by birth. In 2018, as the ostensible Caliphate crumbled, Hoda and her son fled and allegedly remain in a camp in Syria run by Kurdish forces.

5
After receiving communications from his daughter, Muthana contacted the U.S. Attorney for the Northern District of Alabama, where he resided, and expressed Hoda’s “desire to return as well as her willingness to surrender to United States authorities for any contemplated charges.” The U.S. Attorney responded by referring the matter to the State Department. About a month later, Secretary of State Mike Pompeo issued a public “Statement on Hoda Muthana” declaring that “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted into the United States. She does not have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.” This statement was recognized by President Donald Trump, who tweeted: “I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!”
The next day, Muthana filed a nine count complaint in the U.S. District Court for the District of Columbia, alleging these statements effectively revoked his daughter’s and grandson’s U.S. citizenship in violation of the Fourteenth Amendment. First, proceeding as next friend to his daughter and grandson, Muthana sought a declaratory judgment “recognizing the citizenship of his daughter and grandson.” Second, again proceeding as next friend, Muthana sought “injunctive and mandamus relief obligating the United States to accept Ms. Muthana and her son back into the United States and to use all available means to do so.” Third, Muthana sought a declaratory judgment that he would not violate the prohibition on providing material support for terrorism, 18 U.S.C. § 2339B, if he sent money and supplies to his daughter and grandson in Syria. The government moved to dismiss for lack of subject matter jurisdiction and failure to state a claim, or, in the alternative, for summary judgment. In support of its motion, the government attached a certification from the State Department that Muthana and his family possessed diplomatic

6
immunity until February 6, 1995, well after Hoda’s birth in October 1994.
The district court granted summary judgment to the government on the citizenship and reentry claims and dismissed the material support claim for lack of subject matter jurisdiction. The court first found Muthana could proceed as “next friend” to his daughter and grandson because he had a “significant relationship” to them and they were unavailable due to their presence in Syria. Turning to the merits, the district court converted the government’s Federal Rule of Civil Procedure 12(b)(6) motion for failure to state a claim into a Rule 56 motion for summary judgment. The court held that Muthana’s citizenship and reentry claims all failed for the same fundamental reason: Hoda is not, and never has been, a U.S. citizen. The court determined that the State Department reasonably interpreted the Vienna Convention to provide for diplomatic immunity until the sending state notifies the receiving state of the diplomat’s termination. The court next found that the State Department’s certification was conclusive proof that Muthana continued to enjoy diplomatic immunity on the date his daughter was born. Because the child of a diplomat is not born “subject to the jurisdiction” of the United States, the court held that Hoda was not entitled to citizenship by birth and, since she was not subsequently naturalized, never became a U.S. citizen. Finally, the court dismissed for lack of jurisdiction Muthana’s request for a declaration that he would not violate the statutory prohibition on providing material support for terrorism by sending aid to his daughter and grandson. The court determined that Muthana failed to allege the statute violated his constitutional rights. Muthana timely appealed.

7
II.
Although the government does not renew its challenge to standing on appeal, we have an independent obligation to ensure our jurisdiction. Grocery Mfrs. Ass’n v. EPA, 693 F.3d 169, 174 (D.C. Cir. 2012). There is a serious question of whether Muthana can sustain next friend standing on behalf of his adult daughter Hoda. Next friend standing is a narrow exception to Article III standing, which requires that a party assert his own rights in alleging an injury in fact. Next friend standing has been generally limited to three historically grounded exceptions codified by Congress: a person may assert next friend standing on behalf of minors and incompetents, or to seek a writ of habeas corpus. See Whitmore v. Arkansas, 495 U.S. 149, 163 n.4 & 164 (1990) (“Indeed, if there were no restriction on ‘next friend’ standing in federal courts, the litigant asserting only a generalized interest in constitutional governance could circumvent the jurisdictional limits of Art. III simply by assuming the mantle of ‘next friend.’”). Hoda does not fit within any of the established exceptions. At age twenty, she is not a minor, and Muthana has not asserted that she is incompetent. See FED. R. CIV. P. 17(c). Nor does Muthana petition for a writ of habeas corpus on Hoda’s behalf.
We need not decide whether Muthana may proceed as next friend to Hoda, however, because Muthana may proceed as next friend to his grandson.3 Federal Rule of Civil
3 The district court held there was next friend standing for Hoda and John Doe by relying on Ali Jaber v. United States, which held that next friend standing may be invoked whenever a “plaintiff[] can sufficiently demonstrate its necessity,” and therefore that next friend standing does not require statutory authorization. 155 F. Supp. 3d 70, 76 (D.D.C. 2016). We are not aware of any Supreme Court or circuit precedent that extends next friend standing beyond the exceptions

8
Procedure 17 allows a next friend to sue on behalf of a minor. Next friend standing on behalf of minors is a long-recognized exception to the rule that a litigant can claim injury only to his personal interests. See Whitmore, 495 U.S. at 163 n.4. This exception recognizes that a minor “must be represented by a competent adult” to pursue his claims in court. T.W. by Enk v. Brophy, 124 F.3d 893, 895 (7th Cir. 1997); see also Whitmore, 495 U.S. at 165 (explaining the “ancient tradition” of next friend standing requires that “the real party in interest is unable to litigate his own cause due to mental incapacity, lack of access to court, or other similar disability”). Muthana thus may proceed on behalf of his grandson if he qualifies as his next friend. He does.
To determine whether a person may proceed as next friend to a minor, we examine the relationship between the proposed next friend and minor. See T.W. by Enk, 124 F.3d at 897; cf. Whitmore, 495 U.S. at 163–64 (explaining that, to obtain a writ of habeas corpus as a next friend, the next friend “must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate” and suggesting that a significant relationship is required). Not every person who is interested in serving as a minor’s next friend qualifies for that role. There must ordinarily be a significant relationship between the proposed next friend and minor, see T.W. by Enk, 124 F.3d at 897, though
codified by Congress. Ali Jaber misconstrues the Supreme Court’s decision in Whitmore, which identified serious Article III concerns with expanding next friend standing and simply reserved the question of whether next friend standing could be sustained absent statutory authorization. Whitmore, 495 U.S. at 164. Moreover, we note that a decision of our district court “do[es] not establish the law of the circuit, nor, indeed, do[es it] even establish the law of the district.” In re Executive Office of President, 215 F.3d 20, 24 (D.C. Cir. 2000) (cleaned up).

9
that requirement may not rigidly apply when a minor has no significant relationships, see Sam M. ex rel. Elliott v. Carcieri, 608 F.3d 77, 91 (1st Cir. 2010).
Muthana easily qualifies as next friend to his grandson. A minor’s parent or close relative is a natural fit to serve as his next friend in most cases. The government argued below that, as his mother, Hoda was the appropriate next friend for John Doe. But when a minor’s parent is “unable, unwilling or refuses to act” as next friend to the minor, another person may proceed as next friend. See Ad Hoc Comm. of Concerned Teachers v. Greenburgh No. 11 Union Free Sch. Dist., 873 F.2d 25, 30 (2d Cir. 1989). Hoda is unable to proceed as John Doe’s next friend because she is inaccessible in a Kurdish camp in Syria and unable to return to the United States. Muthana is a close relative of John Doe who is able and willing to litigate his claims. Because Muthana has a significant relationship to his grandson, he may proceed as John Doe’s next friend.
Once a court determines that a party has standing to proceed as next friend, it must determine if the real party in interest possesses standing in his own right. Here, the alleged deprivation of American citizenship without due process of law is a judicially cognizable injury in fact. See U.S. CONST. amend. XIV, § 1; see also Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 (1963) (“Citizenship … is expressly guaranteed by the Fourteenth Amendment to the Constitution, which speaks in the most positive terms.”). Accepting Muthana’s allegations as true, the U.S. government denied John Doe his U.S. citizenship without due process. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) (explaining that we take a plaintiff’s affidavits and other factual evidence as true when determining standing at the summary judgment stage). This injury is actual and personal to John Doe, fairly traceable to the

10
government’s conduct, and redressable through a declaratory judgment settling his citizenship. See id. at 560–61. Because John Doe would have standing to bring his citizenship claim, Muthana can pursue this claim as his grandson’s next friend.
The district court had jurisdiction to determine John Doe’s citizenship, a question that necessarily required a determination of his mother’s citizenship. Under the Immigration and Nationality Act, a person born outside the United States to one citizen-parent is a citizen as long as his citizen-parent lived in the United States for five years, and was at least fourteen years old for two of those years. 8 U.S.C. § 1401(g).4 The only alleged basis for John Doe’s citizenship is the citizenship of his mother. Therefore, it is impossible to disaggregate the question of John Doe’s citizenship from that of his mother’s. Although Muthana cannot proceed as next friend to Hoda, the district court was required to determine Hoda’s citizenship as a necessary incident of its jurisdiction to determine John Doe’s citizenship.
We review de novo a district court’s grant of summary judgment and dismissal of a claim for lack of subject matter jurisdiction. Waggel v. George Washington Univ., 957 F.3d
4 As relevant here, 8 U.S.C. § 1401 provides:
The following shall be nationals and citizens of the United States at birth: … (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years[.]

11
1364, 1371 (D.C. Cir. 2020) (summary judgment); Ctr. for Law & Educ. v. Dep’t of Educ., 396 F.3d 1152, 1156 (D.C. Cir. 2005) (lack of jurisdiction). Summary judgment should be granted if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a).
III.
Although Muthana’s claims focus on the revocation of citizenship for Hoda and John Doe, this case requires us to first ascertain whether Hoda and John Doe were United States citizens. That question turns on whether Muthana possessed diplomatic immunity when Hoda was born. Under the Fourteenth Amendment, “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” U.S. CONST. amend. XIV, § 1. A child born on U.S. soil to a foreign diplomat possessing diplomatic immunity is not eligible for citizenship by birth because she is not born “subject to the jurisdiction” of the United States. See United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898); Nikoi v. Att’y Gen., 939 F.2d 1065, 1066 (D.C. Cir. 1991) (“The jurisdiction clause was intended to exclude from its operation children of ministers of foreign States born within the United States.”) (cleaned up). We agree with the district court that because Muthana enjoyed diplomatic immunity at the time of Hoda’s birth, she did not become a citizen at birth and therefore John Doe did not acquire citizenship because he was born abroad to non-citizen parents.
The argument proceeds as follows. First, under the Vienna Convention, diplomatic immunity continues until notification of a diplomat’s termination to the host country. Muthana’s arguments to the contrary cannot be squared with the plain

12
meaning of the Convention and longstanding diplomatic practice. Second, in this case the State Department certified to the district court that it was notified of Muthana’s termination on February 6, 1995. Under our precedents, such certification provides conclusive evidence that Muthana enjoyed diplomatic immunity at the time of Hoda’s birth in October 1994, and therefore that Hoda did not become a U.S. citizen at birth. Finally, we cannot grant Muthana equitable relief because courts have no power to confer citizenship where it otherwise does not exist under the laws of the United States.
A.
Diplomatic immunity is governed by the Vienna Convention on Diplomatic Relations. See 23 U.S.T. 3227. When interpreting treaties, “we are guided by principles similar to those governing statutory interpretation.” Iceland S.S. Co., Ltd.-Eimskip v. Dep’t of Army, 201 F.3d 451, 458 (D.C. Cir. 2000). Muthana argues that the Convention allows diplomatic immunity to cease on the date of his termination from his diplomatic post, which was prior to Hoda’s birth. Because he lost diplomatic immunity before his daughter’s birth, Muthana maintains that Hoda is a birthright citizen. The government argues that the Convention requires diplomatic immunity to continue until a reasonable period after notification of termination to the host country. Because the State Department was not notified of Muthana’s termination until after Hoda’s birth, she is not a citizen by virtue of her birth in the United States. “[T]he meaning attributed to treaty provisions by the Government agencies charged with their negotiation and enforcement is entitled to great weight.” Starr Int’l Co. v. United States, 910 F.3d 527, 537 (D.C. Cir. 2018) (quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 184–85 (1982)).

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Here, the State Department’s interpretation comports with the plain meaning of the Convention that diplomatic immunity ceases when the host country is notified of the termination. Article 43 of the Convention states in full:
The function of a diplomatic agent comes to an end, inter alia: (a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end; (b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.
23 U.S.T. 3227, art. 43. Article 39 of the Convention connects the end of diplomatic functions with diplomatic immunity, providing that “[w]hen the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease” when the diplomat leaves the country or after a “reasonable period in which to do so, but shall subsist until that time.” Id. at art. 39. The text of the Convention plainly provides that a diplomat’s functions end upon “notification” to the receiving state and that diplomatic immunities continue from the date of notification for a “reasonable period” or until the diplomat leaves the country.
This notification condition comports with longstanding principles of international law and state practice, which allowed diplomatic immunity to continue for a reasonable period after diplomatic service ended and thereby protected diplomats by giving them some breathing room to leave the country or to make other arrangements without exposure to the jurisdiction of the host country. See, e.g., Emer de Vattel, THE

14
LAW OF NATIONS bk. IV, ch. IX § 125 (B. Kapossy & R. Whatmore eds., 2008) (“[W]hen he is obliged to depart on any account whatever, his functions cease: but his privileges and rights do not immediately expire. … His safety, his independence, and his inviolability, are not less necessary to the success of the embassy in his return, than at his coming.”). The notification standard ensures that decisions regarding the status of diplomats generally turns on the determinations of the sending state.5 Luke T. Lee, CONSULAR LAW AND PRACTICE 95 (2d ed. 1991) (explaining that the notification standard respects state sovereignty by preventing “the receiving State [from] investigating the internal administration of the foreign consular organization in order to determine what status the [diplomatic or consular officer] holds”); cf. Vattel, THE LAW OF NATIONS bk. IV, ch. IX § 78 (noting a sovereign’s exclusive control over its diplomatic missions abroad). Thus, under the plain meaning of the Convention, reinforced by historical practice, diplomatic immunity continues at least until the host country is notified of a diplomat’s termination.6
5 A receiving state can end the functions of a diplomat by following the requirements of Article 43(b), which requires notice to the sending state and then the provision of a “reasonable period” of continued immunity under Article 39.
6 The parallel evolution of consular immunity also bolsters the interpretation of termination and notification as distinct standards for governing the cessation of diplomatic functions. Before 1963, an individual possessing consular immunity, as opposed to full diplomatic immunity, generally lost such immunity immediately upon termination, rather than notification. The Vienna Convention on Consular Relations, however, ended “[t]he differential treatment accorded to consuls,” Lee, CONSULAR LAW AND PRACTICE 112, and replaced the termination standard with the notification standard, Vienna Convention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, art. 25(a). This history buttresses the conclusion that

15
To support his interpretation, Muthana asserts that the term “inter alia” in Article 43 demonstrates that diplomatic immunity can cease either on the date the receiving state is notified of termination or the date of actual termination. Muthana argues that “inter alia” is a term of illustration, not of exclusion, so although notification is an example of when diplomatic immunity may cease, it is not the only standard. According to Muthana, Article 43 does not foreclose an interpretation that diplomatic immunity ends as of the date of termination.7 He reasons that, because termination is a possible standard, the State Department’s decisions in 2005 and 2014 to issue a passport to Hoda were exercises of the Department’s “discretion” to determine that Muthana did not have diplomatic immunity at the time of Hoda’s birth.
Muthana’s arguments, however, cannot be squared with the text, structure, purpose, and history of the Convention. As
notification and termination are distinct periods for marking the end of diplomatic immunity.
7 Muthana’s reliance on Raya v. Clinton, 703 F. Supp. 2d 569, 578 (W.D. Va. 2010), is misplaced because that case concerned a termination that occurred after notification. In Raya, Egypt notified the United States in advance that a diplomat’s functions would terminate in a few days. This notification meant that the diplomat’s immunity would continue until he left the country or the expiry of a reasonable period in which to do so. Id.; see also 23 U.S.T. 3227, arts. 39 & 43. Because notification occurred before termination, the termination date informed how long the diplomat’s immunity would subsist for the “reasonable period” for him to leave the country. See Raya, 703 F. Supp. 2d at 578. Here Muthana was terminated before the United States was notified of his termination and the relevant legal question in this case is about the date of notification of termination, not about the length of a “reasonable period” for continued immunity after notification.

16
already discussed, the plain meaning of the Convention provides for a diplomat’s functions to continue until notification of termination to the receiving state. The Convention’s use of “inter alia” in Article 43 refers to other established circumstances that might end diplomatic functions, such as the death of a diplomat, the extinction of the sending or receiving state, a regime change, severance of diplomatic relations, and war. See, e.g., 23 U.S.T. 3227, art. 39(3) (death of a diplomat), art. 45 (war and severance of diplomatic relations). Thus, “‘inter alia’, as used in the Vienna Convention indicate[s] also the existence of other conditions. All of these are now described.” Lee, CONSULAR LAW AND PRACTICE 94. What “inter alia” does not include is allowing diplomatic immunity to turn on termination, a condition nowhere specified in the Convention and inconsistent with longstanding diplomatic practice.
Muthana’s reading of coexisting termination and notification standards also runs afoul of one of the purposes of the Convention, namely to provide certainty and clarity in diplomatic relations. If either termination or notification of termination could govern the end of a diplomat’s functions, diplomats could not be certain of the continuation of their immunity and host countries would not be certain of the status of lingering diplomats. See id. at 93 (explaining that international crises have arisen due to disagreement and confusion over when diplomatic immunity terminates). The Convention seeks to establish uniform standards for the diplomatic intercourse between nations in order to promote predictability and reciprocity. See id. (highlighting the importance of a “[c]lear statement of the condition under which the consular status of an individual terminates”) (citation and quotation marks omitted); see also 23 U.S.T. 3227 pmbl. (explaining the Vienna Convention was created to ensure there is “an international convention on diplomatic intercourse” to

17
“contribute to the development of friendly relations among nations, irrespective of their differing constitutional and social systems”). As the government stresses here, the Convention “serves to protect United States diplomats abroad, which is a critical national interest of the United States.” Gov’t Br. 6. An interpretation that renders the standard governing the end of diplomatic immunity uncertain would provide less protection to diplomats and the nations they represent and could undermine reciprocal treatment of American diplomats abroad.
Finally, although the State Department has some discretion over questions of diplomatic immunity even within the terms of the Convention,8 the government does not suggest that such discretion was exercised here to deny Muthana diplomatic immunity before notification of his termination and thereby to recognize Hoda’s citizenship by birth. To the contrary, the government maintains that at the time of Hoda’s birth, Muthana continued to enjoy diplomatic privileges and immunities. In addition to its certification, the government presented several contemporaneous records corroborating that Muthana had diplomatic status after Hoda’s birth. For example, it presented a file from the U.N. Office of Protocol reflecting that Muthana’s diplomatic status continued until February 6, 1995. S.A. 109. The government maintains that the issuance of a passport to Hoda in 2005 and 2014 was in error. It would seem far afield of the judicial role to convert a government error into an exercise of executive discretion in the sensitive
8 For example, the Diplomatic Relations Act vests the President with the authority to “specify [diplomatic privileges] … which result in more favorable treatment or less favorable treatment than is provided under the Vienna Convention,” and he may do so “on the basis of reciprocity and under such terms and conditions as he may determine.” 22 U.S.C. § 254c(a).

18
arena of diplomatic relations.
Consistent with historical practice, the Vienna Convention explicitly recognizes that diplomatic functions continue until notification of termination to the host country and that immunity is maintained for some “reasonable period” after such notification. We therefore hold that Muthana’s diplomatic immunity continued at least until the United States was notified of his termination by Yemen.
B.
Whether Hoda and John Doe are citizens depends on whether Muthana enjoyed diplomatic immunity at the time of Hoda’s birth. Under the Vienna Convention, the question turns on one dispositive fact: when was the United States notified that Muthana was no longer a diplomat? The State Department certified to the district court that the United States received notice of Muthana’s termination on February 6, 1995. The district court accepted this certification as conclusive proof that Muthana had diplomatic immunity when his daughter was born in October 1994. Muthana attempts to rebut this conclusion by relying on a document obtained when applying for Hoda’s passport. That letter states Muthana was “notified to the United States Mission” as a diplomat from October 15, 1990, to September 1, 1994. In light of more than a century of binding precedent that places the State Department’s formal certification of diplomatic status beyond judicial scrutiny, we conclude the certification is conclusive and dispositive evidence as to the timing of Muthana’s diplomatic immunity. With no dispute of material fact, summary judgment for the government was appropriate.
The Constitution vests the President with the sole power to “receive Ambassadors and other public Ministers.”

19
U.S. CONST. art. II, § 1 (“The executive Power shall be vested in a President of the United States of America.”), § 3 (“[H]e shall receive Ambassadors and other public Ministers.”). The Reception Clause recognizes the President’s authority to determine the status of diplomats, a fact long confirmed by all three branches. See, e.g., Crimes Act of 1790 ch. IX § 25, 1 Stat. 112, 117–18; Presidential Power to Expel Diplomatic Personnel from the United States, 4A Op. O.L.C. 207, 208–09 (Apr. 4, 1980); In re Baiz, 135 U.S. 403, 432 (1890). Just as the President is vested with the “exclusive” power to recognize foreign governments, Zivotofsky ex rel. Zivotofsky v. Kerry, 576 U.S. 1, 17 (2015), his “action in … receiving … diplomatic representatives is conclusive on all domestic courts,” Guar. Tr. Co. of N.Y. v. United States, 304 U.S. 126, 138 (1938).
Recognizing the vesting of these diplomatic powers with the President, courts have afforded conclusive weight to the Executive’s determination of an individual’s diplomatic status. See In re Baiz, 135 U.S. at 432 (Courts may not “sit in judgment upon the decision of the executive in reference to the public character of a person claiming to be a foreign minister.”). Justice Bushrod Washington, riding circuit, explained why the Constitution compels this rule:
The constitution of the United States having vested in the president the power to receive ambassadors and other public ministers, has necessarily bestowed upon that branch of the government, not only the right, but the exclusive right, to judge of the credentials of the ministers so received; and so long as they continue to be recognized and treated by the president as ministers, the other branches of the government are bound to consider them as such.

20
United States v. Ortega, 27 F. Cas. 359, 361 (C.C.E.D. Pa. 1825) (Washington, J.). This understanding has survived to the present day. See Carrera v. Carrera, 174 F.2d 496, 497–98 (D.C. Cir. 1949); Zdravkovich v. Consul Gen. of Yugoslavia, 1998 WL 389086, at *1 (D.C. Cir. June 23, 1998) (“The courts are required to accept the State Department’s determination that a foreign official possesses diplomatic immunity from suit.”).9
In litigation implicating the status of diplomats, the courts and the Executive have developed a practice in which the Executive submits a certification of a diplomat’s status to the court. For example, in Carrera, we explained that the Executive’s certification of immunity is entitled to conclusive weight when it is “transmitted to the district judge” by the State Department: “It is enough that an ambassador has requested immunity, that the State Department has recognized that the person for whom it was requested is entitled to it, and that the Department’s recognition has been communicated to the court.” 174 F.2d at 497. We noted that this was the process that was “approved by the Supreme Court in In re Baiz.” Id.; see also United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir. 2004); Abdulaziz v. Met. Dade County, 741 F.2d 1328, 1330– 31 (11th Cir. 1984); 4A Op. O.L.C. at 208–09. In this case, the State Department has submitted under this longstanding process a formal certification that the United States was notified of Muthana’s termination from his diplomatic position
9 This view is also uniformly maintained by our sister circuits. See, e.g., United States v. Al-Hamdi, 356 F.3d 564, 568, 573 (4th Cir. 2004); Abdulaziz v. Met. Dade County, 741 F.2d 1328, 1331 (11th Cir. 1984); United States v. Lumumba, 741 F.2d 12, 15 (2d Cir. 1984) (“[R]ecognition by the executive branch—not to be second-guessed by the judiciary—is essential to establishing diplomatic status.”).

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on February 6, 1995.
In response, Muthana argues that the certification is not conclusive as to the dates of immunity because the district court was required to weigh the additional evidence he submitted, which he claims at least creates a dispute of material fact sufficient to prevent summary judgment. Specifically, Muthana attached a 2004 letter from Russell Graham (the “Graham Letter”), in which the United States Mission to the United Nations informed the Bureau of Citizenship and Immigration Services that Muthana was “notified to the United States Mission” as a diplomat from October 15, 1990, to September 1, 1994. Muthana argues that the district court should have given more weight to the Graham Letter than the State Department’s certification, which was produced twenty years after Hoda’s birth and after this lawsuit was filed. Because the Graham Letter was dated from before Hoda received her passport, Muthana suggests the Letter demonstrates that the State Department understood he was not in a diplomatic role when Hoda was born.
Even on its own terms, however, the Graham Letter creates no dispute over the relevant legal fact of when the United States was notified of Muthana’s termination. The Graham Letter notes only two dates: Muthana’s date of appointment as a diplomat, October 15, 1990, and his date of termination, September 1, 1994. The Graham Letter merely addresses the duration of Muthana’s diplomatic position and when it was terminated. The Graham Letter says nothing about when the United States was notified of Muthana’s termination and therefore when his diplomatic immunity ended.
In any event, we must accept the State Department’s formal certification to the Judiciary as conclusive proof of the dates of diplomatic immunity. See, e.g., Carrera, 174 F.2d at

22
497. The Executive’s determination cannot be attacked by “argumentative or collateral proof.” See In re Baiz, 135 U.S. at 432. When a diplomat has been recognized by the Executive, “the evidence of those facts is not only sufficient, but in our opinion, conclusive upon the subject of his privileges as a minister.” Ortega, 27 F. Cas. at 362. See also Carrera, 174 F.2d at 498 (“[T]he Secretary having certified Carrera’s name as included in the list, judicial inquiry into the propriety of its listing was not appropriate.”); Al-Hamdi, 356 F.3d at 573 (explaining that the State Department’s certification “is conclusive evidence as to [] diplomatic status”). The State Department made a formal certification in this case, and it cannot be undermined by collateral evidence such as the Graham Letter, a document of unknown provenance that Muthana attached to his complaint.
By accepting the certification as conclusive, we decline to second-guess the Executive’s recognition of diplomatic status. If courts could rely upon extrinsic evidence submitted by private parties to impeach the credibility of the Executive’s formal certification, the certification would not be conclusive, and the courts rather than the Executive would have the final say with respect to recognizing a diplomat’s immunity.10 See United States v. Pink, 315 U.S. 203, 230 (1942) (“We
10 Contrary to the concurring opinion, the State Department argued that its certification was “conclusive” and “dispositive.” Gov’t Br. 30–31. When discussing the effect of the Graham Letter at oral argument, the State Department argued that, “under Baiz,” its certification “ha[s] a special status here.” Oral Arg. Tr. 25:3–4; see also Oral Arg. Tr. 17:1–3. Indeed, the Department advanced in its brief the argument the court adopts today: “Under established law that has been consistent for over a century, when the Department of State certifies the diplomatic status of an individual, the courts are bound to accept that determination.” Gov’t Br. 25 (citation and quotation marks omitted).

23
would usurp the executive function if we held that that [the recognition] decision was not final and conclusive in the courts.”). The district court properly held that the State Department’s certification is conclusive proof of the dates of Muthana’s immunity and declined Muthana’s request to look behind the certification or to order discovery.
Under the Vienna Convention, immunity continues at least until notification of termination, and the State Department here certified to the district court that notification of Muthana’s termination occurred on February 6, 1995. Thus, Muthana possessed diplomatic immunity when his daughter was born in October 1994. As a consequence, Hoda Muthana was not born “subject to the jurisdiction” of the United States and is not a citizen by birth under the Fourteenth Amendment. See Nikoi, 939 F.2d at 1066. This also means that John Doe did not acquire citizenship based on parentage under 8 U.S.C. § 1401(g), since neither of his parents was a U.S. citizen when he was born.
C.
Muthana also seeks equitable relief. He maintains that the government should be equitably estopped from “stripping” Hoda of her U.S. citizenship. He contends the State Department previously determined that Muthana’s diplomatic post terminated prior to Hoda’s birth when it issued her a passport in 2005, recognizing her right to citizenship by birth.11
11 Muthana sensibly does not rest his argument solely on the State Department’s issuance and subsequent revocation of Hoda’s passport. As Muthana acknowledges, a passport “does not confer citizenship upon its recipient.” Hizam v. Kerry, 747 F.3d 102, 109 (2d Cir. 2014). The Secretary of State is authorized to “cancel any United States passport … if it appears that such document was … erroneously obtained from … the Secretary,” 8 U.S.C.

24
Muthana also highlights the unfairness created by the State Department’s issuance and subsequent revocation of Hoda’s passport. He explains that, had he known Hoda was not born a U.S. citizen, he would have pursued the naturalization process for her, as he did for himself, his wife, and their other children.
Although Muthana may have had a good faith understanding that his daughter acquired citizenship at birth, an error initially shared by the State Department, the law affords Muthana no relief. As we have explained, Hoda has never been a U.S. citizen and therefore the State Department revoked her passport, but could not strip her of a citizenship she never lawfully enjoyed. Even if the State Department previously recognized Hoda as a citizen as Muthana contends, the Executive can only recognize lawful citizenship, and Hoda did not acquire citizenship at birth because her parents had diplomatic immunity. We cannot now order the State Department to recognize Hoda’s citizenship, because she is not a citizen under the Constitution or laws of the United States. The Executive has no authority to confer citizenship on Hoda outside of the naturalization rules created by Congress.12
§ 1504(a), and the State Department cancelled Hoda’s passport in 2016. Thus, the State Department’s issuance, renewal, and revocation of Hoda’s passport cannot settle her claim to citizenship.
12 The Constitution vests the exclusive power “[t]o establish an uniform Rule of Naturalization” in Congress. U.S. CONST. art. I, § 8; Chirac v. Chirac’s Lessee, 15 U.S. 259, 269 (1817) (Marshall, C.J.) (“[T]he power of naturalization is exclusively in congress.”). The Executive cannot unilaterally confer citizenship. Congress may, however, grant citizenship through private bills, which are generally reserved for “cases that are of such an extraordinary nature that an exception to the law is needed.” H.R. COMM. ON THE JUDICIARY, SUBCOMM. ON IMMIGR. & CITIZENSHIP, 116TH CONG., RULES OF

25
Nor do the courts have an equitable power to grant citizenship. “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 these limitations.” INS v. Pangilinan, 486 U.S. 875, 885 (1988); Fedorenko v. United States, 449 U.S. 490, 506 (1981) (“Congress alone has the constitutional authority to prescribe rules for naturalization.”) (citing U.S. CONST. art. I, § 8). Having held that Hoda is not a citizen under the Fourteenth Amendment and her son is not a citizen under 8 U.S.C. § 1401(g), we cannot confer citizenship through equity.
* * *
For the foregoing reasons, we affirm the district court’s conclusion that Hoda Muthana and her son are not, and never have been, citizens of the United States.
IV.
Having held that Hoda and her son are not citizens, the district court properly denied Muthana’s mandamus petition. Rather than grant the government summary judgment on this count, however, the district court should have dismissed Muthana’s mandamus claims for lack of subject matter jurisdiction. Under 28 U.S.C. § 1361, “[a] court may grant mandamus relief only if: (1) the plaintiff has a clear right to relief; (2) the defendant has a clear duty to act; and (3) there is no other adequate remedy available to plaintiff.” Baptist Mem’l Hosp. v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010) (cleaned up). “These three threshold requirements are jurisdictional; unless all are met, a court must dismiss the case for lack of
PROC. & STATEMENT OF POL’Y FOR PRIV. IMMIGR. BILLS, at 3 (2019).

26
jurisdiction.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C. Cir. 2016). Thus, “mandamus jurisdiction under § 1361 merges with the merits.” Lovitky v. Trump, 949 F.3d 753, 759 (D.C. Cir. 2020) (citation and quotation marks omitted).
Muthana sought a writ of mandamus obligating the United States to use all available means to return his daughter and grandson to the United States. To do so, he asked the court to “order the government to affect her return to the United States, including but not limited to the use of military or other government aircraft.” Pl.’s Mem. in Support 21, Muthana v. Pompeo, No. 1:19-cv-00445-RBW (D.D.C. Mar. 1, 2019), ECF No. 15. Not even citizens have a clear right to assistance from the U.S. government in coming to U.S. territory, so aliens certainly have none. Accordingly, Hoda and her son lack any right to this relief. We therefore remand this claim and direct the district court to dismiss Muthana’s mandamus petition for lack of subject matter jurisdiction.
V.
Finally, the district court correctly dismissed for lack of standing Muthana’s claim for a declaratory judgment that he would not violate the prohibition on providing material support for terrorism if he sent money and supplies to his daughter and grandson. See 18 U.S.C. § 2339B. In pursuing this claim, Muthana proceeded in his personal capacity rather than as next friend to his daughter and grandson. The district court held that he lacked standing because he failed to identify a personal constitutional right that would be affected by the enforcement of the statutory prohibition on providing material support for terrorism. We agree.
To establish standing for a preenforcement challenge, a plaintiff must demonstrate first “an intention to engage in a

27
course of conduct arguably affected with a constitutional interest, but proscribed by a statute” and, second, that “there exists a credible threat of prosecution thereunder.” Susan B. Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (citation and quotation marks omitted). Muthana’s claim fails under the first requirement because he did not allege that the material support statute was unconstitutional as applied to his intended conduct. Instead, he argued that he would not violate the statute by sending support to Hoda because she was no longer engaged in terrorist activity.
Preenforcement review is not a vehicle to settle questions of statutory interpretation unconnected with matters of constitutional right. Instead, preenforcement review is limited and appropriate only to relieve a plaintiff from the necessity of “first expos[ing] himself to actual arrest or prosecution” before he can “challenge [the] statute that he claims deters the exercise of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452, 459 (1974). The district court properly rejected Muthana’s standing to seek review of the applicability of the material support statute absent a claim of constitutional right.13 Accordingly, we affirm the dismissal of this count for lack of subject matter jurisdiction.
* * *
Muthana focuses his lawsuit on the hardship resulting
13 For the first time on appeal, Muthana argues that the material support statute unconstitutionally burdens his right to free association. Because it is “not the province of an appellate court to hypothesize or speculate about the existence of an injury Plaintiff did not assert to the district court,” we decline to consider this new theory of standing on appeal. Huron v. Cobert, 809 F.3d 1274, 1280 (D.C. Cir. 2016) (cleaned up).

28
from the revocation of his daughter’s passport and the State Department “stripping away” her citizenship. Yet Hoda was not born a United States citizen because her father possessed diplomatic immunity when she was born and therefore she was not born subject to the jurisdiction of the United States. See U.S. CONST. amend. XIV, § 1. Hoda’s son, who was born abroad to two non-citizen parents, could not have acquired citizenship. See 8 U.S.C. § 1401(g). Therefore, we affirm in part the grant of summary judgment to the government because neither Hoda Muthana nor John Doe have ever been citizens of the United States. We also affirm the district court’s dismissal for lack of jurisdiction of Muthana’s claim for preenforcement review of the material support for terrorism statute. Because the district court lacked jurisdiction over Muthana’s petition for a writ of mandamus, it must be dismissed on remand.
So ordered.

TATEL, Circuit Judge, concurring in the judgment: Although this case touches on a critical provision of the Fourteenth Amendment—the “Jurisdiction Clause”—it could have been resolved on the most routine of grounds. Both parties agree that this dispute turns on when the United States Mission received “notification” of Ahmed Ali Muthana’s termination from his role as a diplomat with the Yemeni Mission to the United Nations. If the United States Mission received that notification before Muthana’s daughter’s birth in October 1994, she is a citizen of the United States; otherwise, she is not.
The record contains two documents purporting to speak to Muthana’s diplomatic tenure: a 2004 letter from Russell Graham stating that Muthana was “notified to the United States Mission” as a diplomat from October 15, 1990, to September 1, 1994, and a 2019 letter from James Donovan stating that Muthana and his family possessed diplomatic immunity until February 6, 1995. But as even this court agrees, Majority Op. at 21–22, nothing in the Graham letter contradicts the Donovan letter’s statement that the United States received notification of Muthana’s termination on February 6, 1995. We therefore could have easily resolved this case on the ground that there is no genuine issue of material fact as to the date of notification, just as the government argued in the district court, just as Judge Walton concluded, and just as the government urges here. Indeed, we could have done so by judgment.
Yet the court reaches out to affirm on the basis of an argument not raised by the government and not surfaced by the court at oral argument: that we must ignore the Graham letter entirely and look to the contents of the Donovan letter alone because that is the document the executive branch “formally” transmitted to the court in the course of litigation. Such a holding is not only unnecessary, but wrong.
The court begins its analysis with “a century of binding precedent that places the State Department’s formal

2
certification of diplomatic status beyond judicial scrutiny.” Majority Op. at 19. So far so good. Over a century ago, the Supreme Court announced in In re Baiz, 135 U.S. 403 (1890), that because “we do not assume to sit in judgment upon the decision of the executive in reference to the public character of a person claiming to be a foreign minister,” “the certificate of the Secretary of State . . . is the best evidence to prove the diplomatic character of a person.” Id. at 432, 421 (emphasis added). Were the Donovan letter the only State Department certification in the record, that uncontroversial statement of law would make this an even easier case.
The problem, of course, is that the record contains not one but two documents purporting to be certifications. Both the Graham and Donovan documents appear on the letterhead of the United States Mission, carry the United States seal, and bear the signature of the Minister Counselor for Host Country Affairs. Both, moreover, contain the same opening words: “This is to certify that . . . .” Joint Appendix 12, 18 (emphasis added). Based on only the four corners of the two documents, both would appear to qualify as the “best evidence to prove the diplomatic character of a person.”
The court sidesteps the problem of dueling certifications by describing the Donovan document as a “formal certification to the Judiciary” submitted to the court pursuant to a “longstanding process.” Majority Op. at 21–22. But the court never explains why the Donovan document, and not the Graham document, is “formal” despite both bearing the same indicia of institutional legitimacy. Nor does the court point to any evidence, record or otherwise, that a longstanding formal procedure for communicating the Executive’s view of diplomatic status to the court exists. Instead, it simply assumes that the way such information reached the court in a handful of prior cases reflects a longstanding formal procedure. But those

3
decisions describe only the facts before the court in each, not any formal procedure.
Without saying so outright, the court appears to adopt a novel rule: that the term “certification” somehow refers only to a “formal certification to the Judiciary” submitted by the Executive in connection with litigation. Majority Op. at 22. That rule suffers from two major flaws.
First, the government nowhere advances the court’s theory—not in its brief and not at oral argument. See Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“The premise of our adversarial system is that appellate courts do not sit as self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”). To be sure, as my colleagues observe, Majority Op. at 22 n.10, the government does contend that the Donovan letter was “conclusive” and “dispositive.” Appellees’ Br. 30–31. But the government does not contend that the Donovan letter was the sole “certification,” and thus “dispositive,” by virtue of the Executive submitting it to the court during this case. The court nonetheless claims to divine such an argument from the government’s statement that “when the Department of State certifies the diplomatic status of an individual, the courts are bound to accept that determination.” Majority Op. at 22 n.10. That statement, however, says nothing about what makes one document and not another a “certification”—the critical question here—and certainly says nothing to suggest that submission during the course of litigation is dispositive. The government simply declares that the Donovan letter “ends the factual inquiry into Plaintiff’s diplomatic status at the time of [his daughter’s] birth,” Appellees’ Br. 25–26, before going on to argue that the Graham letter “failed to . . . refute th[e] date” contained in the Donovan document, id. at 31. I think it especially unwise to adopt a rule

4
that turns on government submission of a document when the government itself advances no such rule.
Second, no case supports the court’s new rule. Although the court seeks to house its theory in In re Baiz, 135 U.S. 403 (1890), and Carrera v. Carrera, 174 F.2d 496 (D.C. Cir. 1949), neither case speaks to how a court differentiates between two seemingly authentic State Department documents. To be sure, the Court held in In re Baiz that “the certificate of the Secretary of State . . . is the best evidence to prove the diplomatic character of a person.” 135 U.S. at 421 (emphasis added). But in that case, the Court rejected the petitioner’s claim to immunity because there was no certification at all, so the question of submission was not before the Court. And in Carrera, the plaintiff challenged the only purported certification on the ground that it was submitted ex parte and therefore “not properly presented to the District Court.” 174 F.2d at 497. Rejecting that argument, our court held that “the process by which the claim of immunity . . . was communicated to the court” was proper. Id. Carrera, in other words, suggests that a court can consider a State Department certification (which, per In re Baiz, is the “best evidence” of diplomatic status) no matter how that certification makes its way to the district court. Nothing in either opinion suggests that submission by the government during litigation somehow elevates one authentic State Department document over another; the issue was just not before either court.
Nor do decisions citing In re Baiz and Carrera address the issue of dueling documents. In Abdulaziz v. Metropolitan Dade County, 741 F.2d 1328 (11th Cir. 1984), for example, the Eleventh Circuit relied on a State Department certification and rejected the argument that it should conduct an independent inquiry into whether the individual fell outside the protections of the Vienna Convention, or “was apparently eligible for, but

5
had not been granted diplomatic status at the time he initiated [suit].” Id. at 1331. In United States v. Al-Hamdi, 356 F.3d 564 (4th Cir. 2004), the Fourth Circuit likewise concluded that, having been presented with a “State Department[] certification . . . based on a reasonable interpretation of the Vienna Convention,” the court would “not review the State Department’s factual determination that, at the time of his arrest, Al-Hamdi fell outside of the immunities of the Vienna Convention.” Id. at 571, 573. Neither case addressed the question we face here: what to do when there are two state department documents purporting to address diplomatic status.
Of course, our review is limited in this sensitive arena. Article II of the Constitution gives the President the power to “receive Ambassadors and other public Ministers,” which is precisely why the Supreme Court crafted the “best evidence” rule in In re Baiz: to prevent the judiciary from “sit[ting] in judgment upon the decision of the executive in reference to the public character of a person claiming to be a foreign minister.” 135 U.S. at 432. Nothing in the Constitution or case law, however, requires that we credit the Executive’s litigating position to the exclusion of all other Executive evidence, no matter how authoritative.
Under the court’s new rule, had Muthana produced a document identical to Donovan’s letter in every way except for stating “this is to certify that the United States Mission received notification not in February 1995, but in July 1994,” it would have been improper to even consider that evidence. The case law does not require such a result, the government does not seek it, and we can straightforwardly resolve this case on the same ground Judge Walton did—that “the Graham certification . . . speak[s] to the date of [Muthana’s] termination . . . , not the date when the United States Mission was notified of [his]

6
termination.” Muthana v. Pompeo, No. 19-cv-00445, slip op. at 21 (D.D.C. Dec. 17, 2019).

 
 Case 1:19-cv-00445-RBW Document 33 Filed 12/17/19 Page 1 of 27

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

)

AHMED ALI MUTHANA, individually, )

and as next friend of Hoda Muthana and )

Minor John Doe,

)

)

Plaintiff,

)

v.

)

)

MICHAEL POMPEO, in his official

)

capacity as Secretary of the Department of )

State, et al.,

)

)

Defendants.

)

)

Civil Action No. 19-445 (RBW) UNDER SEAL

MEMORANDUM OPINION

The plaintiff, Ahmed Ali Muthana, brings this civil action individually and as the next

friend of his daughter, Hoda Muthana, and minor grandson, John Doe, against the defendants,

Michael Pompeo, in his official capacity as the Secretary of the United States Department of

State (“the “State Department”); Donald J. Trump, in his official capacity as the President of the

United States; and William Barr, in his official capacity as the Attorney General of the United

States (collectively, the “defendants”), seeking expedited declaratory, injunctive, and mandamus

relief, see Expedited Complaint for Declaratory Judgment, Injunctive Relief and Petition for Writ

of Mandamus (“Compl.” or the “Complaint”) ¶ 1, in his attempt to have the Court order that his

daughter and grandson be permitted to enter the United States and that he be permitted to provide

financial support to them while they are in Syria.

After denying the plaintiff’s first request for expedited consideration of the relief

requested by the plaintiff on March 11, 2019, see Order at 4 (Mar. 11, 2019), ECF No. 18, on

November 14, 2019, the Court granted the Plaintiff’s Renewed Motion for Expedited Ruling

Case 1:19-cv-00445-RBW Document 33 Filed 12/17/19 Page 2 of 27

(“Pl.’s Mot.” or the “renewed motion for expedited consideration”) and granted in part and

denied in part the defendants’ Motion to Dismiss or, in the Alternative, for Partial Summary

Judgment (“Defs.’ Mot.” or the “motion to dismiss”),1 see Order at 1–2 (Nov. 15, 2019), ECF

No. 30. This Memorandum Opinion provides the legal basis for the Court’s November 15, 2019

Order.

I. BACKGROUND

According to the plaintiff, “[p]rior to his daughter’s birth, [the plaintiff] worked as a

diplomat for the United Nations.” Compl. ¶ 18. However, “[o]n June 2, 1994, the Yemeni

Ambassador Al-Aashtal required [the plaintiff] to surrender his diplomatic identity card.” Id.

Thereafter, his daughter, Hoda Muthana, was born in New Jersey on

1994. See id.

¶ 20. The plaintiff initially applied for a United States passport for his daughter in 2004. See id.

¶ 21. The State Department “initially questioned whether Ms. Muthana was eligible for a

[United States] passport, based on [its] records showing her father’s diplomatic status remained

in effect until February 6, 1995,” but after the plaintiff provided the State Department with a

letter “confirm[ing] that the diplomatic status he had due to his employment at the [United

Nations] was terminated prior to the time of Ms. Muthana’s birth,” Ms. Muthana’s passport

application was granted. Id.

In November 2014, Ms. Muthana withdrew from the university she was attending in

Alabama and traveled to Syria. See id. ¶ 22. “After arriving in Syria, Ms. Muthana made her

1 In addition to the filings already identified, the Court considered the following submissions in rendering its decision: (1) the Declaration of James B. Donovan (“Donovan Decl.”); (2) the Brief of Amicus Curiae Center for Immigration Studies in Support of Defendants/Respondents (“CIS Brief”); (3) the Brief of Amicus Curiae Immigration Reform Law Institute in Support of Defendants (“IRLI Brief”); (4) the Plaintiff’s Memorandum of Law in Opposition to Defendants’ Motion to Dismiss or in the Alternative Motion for Partial Summary Judgment (“Pl.’s Opp’n”); (5) the first Declaration of Ahmed Ali Muthana (May 10, 2019) (“1st Muthana Decl.”); (6) the Reply in Support of Defendants’ Motion to Dismiss or, in the Alternative, for Partial Summary Judgment (“Defs.’ Reply”); (7) the Plaintiff’s Renewed Motion for Expedited Ruling (“Pl.’s Mot.”); and (8) the second Declaration of Ahmed Ali Muthana (Oct. 31, 2019) (“2d Muthana Decl.”).
2

Case 1:19-cv-00445-RBW Document 33 Filed 12/17/19 Page 3 of 27
way into [Islamic State in Iraq and Syria (‘ISIS’)]-controlled territory.” Id. ¶ 23. She married twice and had a son, John Doe, by her second husband. Id. ¶¶ 23–24. “On January 15, 2016, the United States issued a letter addressed to Ms. Muthana at her parents’ residence, purporting to revoke her passport under 22 C.F.R. [§] 51.7 and 51.66[,]”
assert[ing] for the first time that because the [United States] Permanent Mission to the United Nations [the (“United States Mission”)], Host Country Affairs Section, had not been officially notified of [the plaintiff’s] termination until February 6, 1995, [Ms. Muthana] was not “within the jurisdiction of the United States” at the time of her birth, and therefore [is] not a United States citizen pursuant to the Fourteenth Amendment to the Constitution. Id. ¶ 25. In December 2018, “Ms. Muthana fled ISIS-controlled territory,” id. ¶ 30, and “subsequently surrendered to Kurdish forces, who transferred her to Camp al-Hawl in northeast Syria,” id. ¶ 31. On January 15, 2019, the plaintiff’s counsel wrote a letter to the United States Attorney for the Northern District of Alabama, “communicating [Ms. Muthana’s] desire to return [to the United States] as well as her willingness to surrender to United States authorities for any contemplated charges.” Id. ¶ 33. On February 20, 2019, the . . . State Department declared on its website that “Ms. Hoda Muthana is not a [United States] citizen and will not be admitted into the United States. She does not have any legal basis, no valid [United States] passport, no right to a passport, nor any visa to travel to the United States.” Id. ¶ 35. That same day, President Trump “tweeted that ‘I have instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!’” Id. ¶ 36. Ms. Muthana and her son are “currently detained in Syria by Kurdish forces at Camp Roj, after being transferred from Camp al-Hol (also spelled al-Hawl).” Pl.’s Mot. at 2. On February 21, 2019, the plaintiff instituted this civil action against the defendants, seeking expedited consideration “because of the precarious position of [the] [p]laintiff[’s] [ ]
3

Case 1:19-cv-00445-RBW Document 33 Filed 12/17/19 Page 4 of 27
daughter and grandson at Camp al-Hawl in Syria, under the authority of Kurdish forces” and the President’s “intent to withdraw [United States] forces from the Syrian conflict.” Compl. ¶ 15. On March 4, 2019, the Court denied the plaintiff’s first request for expedited relief. See Order at 4 (Mar. 11, 2019), ECF No. 18. Thereafter, on April 26, 2019, the defendants filed their motion to dismiss. See Defs.’ Mot. at 1. On November 1, 2019, the plaintiff filed his renewed motion for expedited consideration, “re-urg[ing] the need for expedited relief in this matter, based on updated circumstances and newly discovered facts[,]” Pl.’s Mot. at 1, and the Court subsequently scheduled a hearing on the defendants’ motion to dismiss, see Min. Order (Nov. 5, 2019). At the hearing on November 14, 2019, the Court granted the plaintiff’s renewed motion for expedited consideration and granted in part and denied in part the defendants’ motion to dismiss. See Order at 1 (Nov. 15, 2019), ECF No. 30. These motions are the subject of this Memorandum Opinion.
II. STANDARDS OF REVIEW A. Motion for Expedited Consideration
Temporary restraining orders and preliminary injunctions2 are “extraordinary remed[ies] that should be granted only when the party seeking the relief, by a clear showing, carries the burden of persuasion.” Chaplaincy of Full Gospel Churches v. Eng., 454 F.3d 290, 297 (D.C. Cir. 2006) (quoting Cobell v. Norton, 391 F.3d 251, 258 (D.C. Cir. 2004)). In determining whether to issue a temporary restraining order or preliminary injunction, see Hall v. Johnson, 599 F. Supp. 2d 1, 3 n.2 (D.D.C. 2009) (noting that the same standard applies to both), a plaintiff must establish “[(1)] that he is likely to succeed on the merits, [(2)] that he is likely to suffer
2 As the Court previously explained, although the plaintiff does not fashion his renewed request for expedited consideration of this case in the form of a motion for a temporary restraining order or preliminary injunction, the Court finds it appropriate to apply the same framework used to evaluate those types of motions to requests for expedited consideration. See Order at 3 (Mar. 11, 2019), ECF No. 18.
4

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irreparable harm in the absence of preliminary relief, [(3)] that the balance of equities tips in his favor, and [(4)] that an injunction is in the public interest,[,]” Sherley v. Sebelius, 644 F.3d 388, 392 (D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)). B. Rule 12(b)(1) Motion to Dismiss
“Federal [district] courts are courts of limited jurisdiction[,]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994), and “[a] motion for dismissal under [Federal Rule of Civil Procedure] 12(b)(1) ‘presents a threshold challenge to the [C]ourt’s jurisdiction[,]’” Morrow v. United States, 723 F. Supp. 2d 71, 75 (D.D.C. 2010) (Walton, J.) (quoting Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987)). Thus, the Court is obligated to dismiss a claim if it “lack[s] [ ] subject-matter jurisdiction[.]” Fed. R. Civ. P. 12(b)(1). Because “[i]t is to be presumed that a cause lies outside [the Court’s] limited jurisdiction,” Kokkonen, 511 U.S. at 377, the plaintiff bears the burden of establishing by a preponderance of the evidence that the Court has subject-matter jurisdiction, see Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992).
In deciding a motion to dismiss for lack of subject-matter jurisdiction, the Court “need not limit itself to the allegations of the complaint.” Grand Lodge of the Fraternal Order of Police v. Ashcroft, 185 F. Supp. 2d 9, 14 (D.D.C. 2001). Rather, the “[C]ourt may consider such materials outside the pleadings as it deems appropriate to resolve the question [of] whether it has jurisdiction to hear the case.” Scolaro v. D.C. Bd. of Elections & Ethics, 104 F. Supp. 2d 18, 22 (D.D.C. 2000); see Jerome Stevens Pharms., Inc. v. Food & Drug Admin., 402 F.3d 1249, 1253 (D.C. Cir. 2005). Additionally, the Court must “assume the truth of all material factual allegations in the complaint and ‘construe the complaint liberally, granting [the] plaintiff the benefit of all inferences that can be derived from the facts alleged.’” Am. Nat’l Ins. Co. v. Fed. Deposit Ins. Corp., 642 F.3d 1137, 1139 (D.C. Cir. 2011) (quoting Thomas v. Principi, 394 F.3d
5

Case 1:19-cv-00445-RBW Document 33 Filed 12/17/19 Page 6 of 27
970, 972 (D.C. Cir. 2005)). However, “the [p]laintiff’s factual allegations in the complaint . . . will bear closer scrutiny in resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.” Grand Lodge, 185 F. Supp. 2d at 13–14 (alterations in original) (internal quotation marks omitted). C. Rule 12(b)(6) Motion to Dismiss
A complaint must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, to survive a motion to dismiss under Rule 12(b)(6) for “failure to state a claim upon which relief may be granted[,]” Fed. R. Civ. P. 12(b)(6), the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face[,]’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556); see Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir. 1994) (noting that the plaintiff is entitled to “the benefit of all inferences that can be derived from the facts alleged”). Although the Court must accept the facts pleaded as true, legal allegations devoid of factual support are not entitled to this presumption. See Kowal, 16 F.3d at 1276. Along with the allegations made within the four corners of the complaint, the Court may also consider “any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” Equal Emp’t Opportunity Comm’n v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).
6

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D. Rule 56 Motion for Summary Judgment The Court must “grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). When ruling on a Rule 56 motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party’s favor and accept the non-moving party’s evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The non-moving party, however, cannot rely on “mere allegations or denials[.]” Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, “[c]onclusory allegations unsupported by factual data will not create a triable issue of fact.” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 908 (D.C Cir. 1999) (Garland, J., concurring) (alteration in original) (quoting Exxon Corp. v. Fed. Trade Comm’n, 663 F.2d 120, 126–27 (D.C. Cir. 1980)). If the Court concludes that “the non[-]moving party has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof[,]” then the moving party is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
III. ANALYSIS The Court will first address the plaintiff’s motion for expedited consideration and will then address the defendants’ motion to dismiss or, in the alternative, for summary judgment. A. The Plaintiff’s Renewed Motion for Expedited Consideration The plaintiff seeks “expedited relief in this matter, based on updated circumstances and newly discovered facts[.]” Pl.’s Mot. at 1. Specifically, the plaintiff alleges that “[t]he President
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of the United States most recently announced the withdrawal of [United States] troops from the area” where Ms. Muthana and her son are currently detained, id. ¶ 5, and argues that “the failure of the United States to urgently facilitate the return of Ms. Muthana and her son will cause immediate and irreparable harm by jeopardizing their ability in the future to return to the United States[,]” id. ¶ 6. The plaintiff further argues that “Ms. Muthana and Minor John Doe are in immediate danger of both physical violence and the already fragile health of Minor John Doe further declining.” Id. ¶ 26.
The Court denied the plaintiff’s previous request for expedited consideration in this matter on the ground that “the plaintiff ha[d] not submitted any competent evidence into the record (i.e., affidavits, exhibits) that would permit the Court to assess whether [his daughter] [and grandson], in fact, face[] irreparable harm[.]” Order at 4 (Mar. 11, 2019), ECF No. 18 (first alteration in original) (internal quotation marks omitted). In contrast, the plaintiff has now submitted evidence into the record demonstrating that Ms. Muthana and her son face ongoing threats to their health and safety, including a declaration by the plaintiff detailing communications with his daughter, see 2d Muthana Decl. ¶¶ 11, 14 (indicating that
); id. ¶ 16 (“My daughter has also communicated to me that because she made statements on video since she has been detained in Syria, which make it clear that she denounces ISIS,
), and
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, see Pl.’s Mot., Ex. B ( ) at 1 (
). Based on the evidence now before the Court, and considering the perilous conditions that Ms. Muthana and her son are experiencing, the Court is now satisfied that irreparable harm does exist.3 See Vo Van Chu v. U.S. Dep’t State, 891 F. Supp. 650, 656 (D.D.C. 1995) (“The cumulative effect of these potential injuries—the ongoing threat to [the plaintiff’s wife’s] health and safety, the ongoing threat of repatriation, and the strong possibility that, should [the plaintiff’s] be repatriated, she could not secure an exit visa—is
3 As to the remaining factors of the expedited consideration inquiry, the Court finds that expedited consideration of this matter would not prejudice the defendants in this case or harm the public at large, and therefore the third and fourth factors, the balance of the equities and the public interest, weigh in favor of expedited consideration. As to the first factor, the likelihood of success on the merits, although the Court ultimately finds that the plaintiff cannot prevail on the merits in this case, see Part III.B, infra, it nevertheless concludes that expedited consideration of this matter is appropriate, considering the demonstrated potential for irreparable injury to Ms. Muthana and her son. See Cigar Ass’n of Am. v. U.S. Food & Drug Admin., 317 F. Supp. 3d 555, 560–61 (D.D.C. 2018) (“[T]he Court may grant [the] [p]laintiffs’ motion and issue an injunction if a ‘serious legal question is presented, . . little if any harm will befall other interest persons or the public, and . . . denial of the order would inflict irreparable injury on [the] [plaintiffs].’” (fourth and fifth alterations in original) (quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 844 (D.C. Cir. 1977))); see id. at 563 (concluding that low likelihood of success on the merits was not fatal to the plaintiffs’ motion for an injunction “[b]ecause [the] [p]laintiffs’ appeal present[ed] serious legal questions on the merits, and because the likelihood of irreparable harm, the balance of the equities, and the public interest strongly favor[ed] interim relief” (internal quotation marks omitted)); Akiachak Native Cmty. v. Jewell, 995 F. Supp. 2d 7, 14 (D.D.C. 2014) (“find[ing] that [the plaintiff’s] low likelihood of success on the merits [was] not fatal to its motion for a stay and injunction” where “the other factors weigh[ed] heavily in favor of [the plaintiff]”).
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enough the satisfy this Court that irreparable harm would exist here.”). Accordingly, the Court grants the plaintiff’s renewed motion for expedited consideration. B. The Defendants’ Motion to Dismiss
In analyzing the defendants’ motion to dismiss, the Court will first address Counts One to Eight of the Complaint, which are brought by the plaintiff in his next friend capacity and relate to Ms. Muthana’s and her son’s claims to citizenship, and will then address Count Nine, which is brought by the plaintiff in his individual capacity and relates to the plaintiff’s request for a declaratory judgment authorizing him to send money to Ms. Muthana to facilitate her return to the United States with her son without incurring liability pursuant to 18 U.S.C. § 2339B (2018).4
1. Counts One to Eight The defendants seek to dismiss Counts One to Eight of the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that “[t]he Court lacks jurisdiction over [the] [p]laintiff’s next-friend claims” because the plaintiff has provided “no valid reason why [Ms.] Muthana has not herself brought this action or signed on to the allegations in the [C]omplaint.” Defs.’ Mot. at 2. The defendants also seek dismissal of Counts One to Eight pursuant to Federal Rule of Civil Procedure 12(b)(6), or alternatively, entry of summary judgment for the defendants on Counts One to Eight pursuant to Federal Rule of Civil Procedure 56, arguing that Counts One to Eight “rest on a fundamental and dispositive error—the assertion that [Ms.] Muthana is a [United States] citizen.” Defs.’ Mot. at 16. The Court will first address whether the Court has jurisdiction over these claims.
4 Section 2339B makes it unlawful to “provide[] material support or resources to a foreign terrorist organization[.]” 18 U.S.C. § 2339B(a).
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a. Whether the Court Lacks Jurisdiction over the Plaintiff’s Next Friend Claims
The defendants argue that dismissal of Counts One to Eight is appropriate pursuant to
Rule 12(b)(1) because the “[p]laintiff does not satisfy either of Whitmore[v. Arkansas]’s
requirements” for next friend status. Defs.’ Mot. at 13 (citing Whitmore v. Arkansas, 495 U.S.
149 (1990)). The plaintiff responds that he “demonstrates appropriate grounds for next friend
status in this case.” Pl.’s Opp’n at 10 (capitalization removed). The Court agrees with the
plaintiff that he has standing to bring claims as Ms. Muthana’s next friend.
The traditional prerequisites for next friend standing were laid out by the Supreme Court in Whitmore v. Arkansas: “First, a ‘next friend’ must provide an adequate explanation—such as inaccessibility, mental incompetence, or other disability— why the real party in interest cannot appear on h[er] own behalf to prosecute the action. Second, the ‘next friend’ must be truly dedicated to the best interests of the person on whose behalf he seeks to litigate, and it has been further suggested that a ‘next friend’ must have some significant relationship with the real party in interest. The burden is on the ‘next friend’ clearly to establish the propriety of his status and thereby justify the jurisdiction of the court.” Although it is true that Whitmore focused largely on the habeas context, . . . it recognized that courts have applied it in other settings . . . . As such, the most natural reading of Whitmore is that next friend standing is not limited to habeas cases, but instead may be invoked if plaintiffs can sufficiently demonstrate its necessity.
Ali Jaber v. United States, 155 F. Supp. 3d 70, 75–76 (D.D.C. 2016) (citation omitted) (quoting
Whitmore v. Arkansas, 495 U.S. 149, 163–64 (1990)), aff’d sub nom. Jaber v. United States, 861
F.3d 241 (D.C. Cir. 2017).
As to the first prong of the Whitmore test, the defendants argue that the “[p]laintiff rests
his assertion that he should be entitled to sue as his daughter’s next friend on the claim that [Ms.]
Muthana has had difficulty communicating with counsel[,]” Defs.’ Mot. at 13 (internal quotation
marks omitted), but the “[p]laintiff acknowledges that both he and his counsel have received
communications from [Ms.] Muthana, and further acknowledges that [Ms.] Muthana has
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repeatedly [been interviewed] by Western news media,” id. (third alteration in original) (citation and internal quotation marks omitted). The plaintiff responds that
Ms. Muthana is being held by Kurdish forces and has little to no control over her ability to communicate with the outside world. She is not able to text or call home freely, and both [the] [p]laintiff and counsel for [the] [p]laintiff have no ability to initiate contact with her. Pl.’s Opp’n at 10 (citation omitted). Additionally, in his first declaration submitted to this Court, the plaintiff states that “[w]henever [he] do[es] hear from [his] daughter, it is almost always from a new phone number, and she identifies that she is borrowing a phone from someone, or using the camp Administration phone[,]” 1st Muthana Decl. ¶ 39, and that he “ha[s] tried to reach her subsequently at each number from which [he] ha[s] received a message from her, but it has not been successful[,]” id. ¶ 40. Based on the plaintiff’s representations, the Court concludes that Ms. Muthana is “sufficiently inaccessible to invoke next friend standing, at least at this stage of the proceedings.” Ali Jaber, 155 F. Supp. 3d at 76 (concluding that, “on a motion to dismiss, [the] defendants’ speculation [that the plaintiffs might be able to participate in court proceedings, even though they could not leave Yemen,] c[ould] [not] defeat [the] plaintiffs’ sworn statement that[] . . . telephone contact was sporadic and difficult from Khashamir, and that [t]eleconferencing, internet[,] and other forms of communication were nearly impossible” (eighth alteration in original) (internal quotation marks omitted)). As to the second prong of the Whitmore test, the defendants argue that the “[p]laintiff has not made an adequate showing that he is acting in accord with [Ms.] Muthana’s interests.” Defs.’ Mot. at 14. Specifically, they argue that the “[p]laintiff alleges that [Ms.] Muthana wishes to return to the United States and is ready to face the consequences of her actions[,] . . . [b]ut [Ms.] Muthana’s own past statements raise questions regarding whether [Ms.] Muthana and [the] [p]laintiff are aligned on this point.” Id. The plaintiff responds that the “[d]efendants rely on
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statements made by Ms. Muthana in 2015, nearly four years ago[,]” and that “[i]n all communications since leaving ISIS-controlled territory, Ms. Muthana has been clear and consistent that she regrets her actions and wishes to return to the United States [to] face justice.” Pl.’s Opp’n at 12. Additionally, in his first declaration, the plaintiff states that his “daughter began communicating with [him] in late 2018 that she wishes to surrender to United States authorities, and is willing to be subject to any legal consequences under the United States judicial system” and “also communicated to [him] at that time that she wants to return to the United States[] with her son[,]” and that he “want[s] her to return to the United States with her son ([his] grandson) as well.” 1st Muthana Decl. ¶¶ 31–33.
Although [t]he existence of a significant relationship enhances the probability that a putative next friend knows and is dedicated to the [absent party’s] individual best interests, courts have refused to infer—simply on the basis of a close familial tie— that a putative next friend actually represents the absent party’s best interests. In other words, where a party’s own views as to his best interests appear to conflict with those of a putative next friend, a court cannot substitute the views of the wouldbe next friend for those of the absent party, even where the purported next friend is a loving parent who only wants what he rationally believes to be in the best interests of his adult child. Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 22 (D.D.C. 2010) (alterations in original) (citations and internal quotation marks omitted). Here, however, not only has the plaintiff demonstrated that he has a significant relationship with Ms. Muthana, but he has also demonstrated that, since at least late 2018, their interests have been aligned. See 1st Muthana Decl. ¶¶ 31–33 (representing that Ms. Muthana has expressed a desire to return to the United States); see also Pl.’s Mot., Ex. B (Muthana Ltr.) at 4 (letter signed by Ms. Muthana stating that “[c]oming to Syria was a mistake” and making “a plea[] to be rescued”); cf. Al-Aulaqi, 727 F. Supp. 2d at 22–23 (concluding that the plaintiff lacked standing to bring claims as his son’s next friend where his son was “mentally competent,
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and . . . ha[d] access to the courts within the meaning of Whitmore[,] [a]nd yet, during the past ten months that his name ha[d] allegedly appeared on ‘kill lists,’ [his son] ha[d] neither filed suit on his own behalf nor expressed any desire to do so”). Accordingly, based on the record in this case, the Court finds that the plaintiff, as Ms. Muthana’s father, has a significant relationship with Ms. Muthana and that he is also representing Ms. Muthana’s best interests.
Because the plaintiff has satisfied the two prongs of the test for next friend standing articulated in Whitmore, the Court concludes that the plaintiff has standing to bring Counts One to Eight as the next friend of Ms. Muthana and her son and therefore denies the defendants’ motion to dismiss Counts One to Eight pursuant to Rule 12(b)(1).
b. Whether Ms. Muthana was Subject to the Jurisdiction of the United States at the Time of Her Birth
The defendants argue that dismissal of Counts One to Eight of the Complaint pursuant to Rule 12(b)(6), or alternatively, entry of summary judgment for the defendants on Counts One to Eight pursuant to Rule 56, is appropriate because Counts One to Eight “all rest on a fundamental and dispositive error—the assertion that [Ms.] Muthana is a [United States] citizen.” Defs.’ Mot. at 16. Specifically, they argue that the
[p]laintiff alleges that he was terminated from his diplomatic position with the Yemeni Mission to the United States no later than September 1, 1994. It is undisputed that [(the “United States Mission”)] was not formally notified of his termination, however, until February 6, 1995. Thus, under the plain terms of the Vienna Convention, and consistent with the practice of the United States regarding individuals accredited to permanent missions to the United Nations, [the] [p]laintiff’s diplomatic status ceased on February 6, 1995—the date the receiving State (the United States, through [the United States Mission]), received notice of his termination. In the meantime, [Ms.] Muthana was born in New Jersey on
1994. Defs.’ Mot. at 19–20 (citations and internal quotation marks omitted). The plaintiff disputes the defendants’ interpretation of the Vienna Convention, arguing that “[i]mmunity for a diplomat
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and family members lasts only as long as the diplomatic position itself.” Compl. ¶ 41; see Pl.’s Opp’n at 2 n.2 (“[The] [p]laintiff does not believe the date of official notice to be relevant to the end of his duties and therefore his entitlement to immunity[.]”). The plaintiff alternatively argues that, even if Ms. Muthana did not become a citizen at birth, “[t]he [United States] government should be equitably estopped from disputing Ms. Muthana’s previously recognized citizenship based on its earlier determination.” Pl.’s Opp’n at 33.
As a preliminary matter, the Court addresses whether the defendants’ motion should be treated as a motion to dismiss Counts One to Eight pursuant to Rule 12(b)(6), or as one for summary judgment pursuant to Rule 56. As support for their Rule 12b(b)(6) motion to dismiss, the defendants submitted the declaration of James B. Donovan, the current Minister for Host Country Affairs at the United States Mission; supporting exhibits to Mr. Donovan’s declaration; and a State Department certification executed by Mr. Donovan. See generally Donovan Decl.; Defs.’ Mot., Exhibit (“Ex.”) B (certification by James B. Donovan (Mar. 1, 2019) (“Donovan Cert.” or the “State Department certification”)). Rule 12(d) instructs that, “[i]f, on a motion under Rule 12(b)(6) . . . , matters outside the pleadings are presented to and not excluded by the [C]ourt, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see 3M Co. v. Boulter, 842 F. Supp. 2d 85, 100 (D.D.C. 2012) (“The . . . Circuit agrees that Federal Rules 12 and 56 are properly construed to require that a speaking motion to dismiss must be treated as a motion for summary judgment.”); see also id. at 97 (defining a “speaking motion” as a “motion[] attacking the merits of a pleader’s claim by relying on matters outside the pleadings, such as affidavits or other factual material”). “A motion may be treated as one for summary judgment even if the parties have not been provided with notice or
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an opportunity for discovery if they have had a reasonable opportunity to contest the matters outside of the pleadings such that they are not taken by surprise.” Beach TV Props., Inc. v. Solomon, 324 F. Supp. 3d 115, 123 (D.D.C. 2018) (quoting Bowe-Connor v. Shinseki, 845 F. Supp. 2d 77, 85 (D.D.C. 2012)). Because it is impossible for the Court to evaluate the merits of the defendants’ Rule 12(b)(6) motion to dismiss without considering the materials submitted by the defendants, and because the plaintiff was not “taken by surprise[,]” id., by the defendants’ intention to convert their Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment, see Defs.’ Mot. at 3 (“[T]he Court should dismiss the [C]omplaint in its entirety under Rule 12. In the alternative, the Court should grant summary judgment to [the][d]efendants on Counts [One] t[o] [Eight].”), the Court finds it appropriate to convert the defendants’ Rule 12(b)(6) motion to dismiss Counts One to Eight into a Rule 56 motion for summary judgment on those counts of the Complaint.
The Court next addresses whether the plaintiff enjoyed diplomatic immunity at the time of Ms. Muthana’s birth, and whether Ms. Muthana was therefore subject to the jurisdiction of the United States at the time of her birth. The Fourteenth Amendment to the United States Constitution provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States[.]” U.S. Const. amend. XIV; see also 8 U.S.C. § 1401(a) (2018). “The jurisdiction clause ‘was intended to exclude from its operation children of ministers . . . of foreign States born within the United States.’” Nikoi v. Att’y Gen. of the U.S., 939 F.2d 1065, 1066 (D.C. Cir. 1991) (alteration in original) (first quoting SlaughterHouse Cases, 83 U.S. 36, 73 (1873); then citing United States v. Wong Kim Ark., 169 U.S. 649, 693 (1898)). Thus, children born in the United States to a parent with diplomatic immunity at the time of their birth are not “subject to the jurisdiction” of the United States at the time of their
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birth. See id. (“Because one parent was a foreign official with diplomatic immunity when each child was born, the births did not confer United States citizenship.”); see also Raya v. Clinton, 703 F. Supp. 2d 569, 576 (W.D. Va. 2010) (“[I]f the plaintiff’s father was entitled to diplomatic privileges and immunities in this country on the date the plaintiff was born, the plaintiff is not a United States citizen.”). “Pursuant to the Diplomatic Relations Act of 1978, 22 U.S.C. §§ 254a– 254e, the governing law in the United States on the issue of diplomatic privileges and immunities is the Vienna Convention on Diplomatic Relations” (the “Vienna Convention”). Raya, 703 F. Supp. 2d at 576.
The determination of whether a person has diplomatic immunity is a mixed question of law and fact. [The Court] review[s] such questions under a hybrid standard, applying to the factual portion of each inquiry the same standard applied to questions of pure fact and examining de novo the legal conclusions derived from those facts. Interpretation of an international treaty is an issue of law subject to de novo review. United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir. 2004) (citations and internal quotation marks omitted). In determining whether the plaintiff enjoyed diplomatic immunity at the time of Ms. Muthana’s birth, the Court must first determine whether the defendants’ interpretation of the Vienna Convention, i.e., that the plaintiff’s diplomatic immunity extended until the date when the United States Mission was notified of his termination, is reasonable. See id. at 570 (“[The Court] first must ensure that the State Department’s certification was not based on an impermissible interpretation of the Vienna Convention. Then, [the Court] will examine the evidentiary effect of the State Department’s certification made pursuant to that interpretation.”). The Vienna Convention provides that “[t]he Ministry for Foreign Affairs of the receiving State, or such other ministry as may be agreed, shall be notified of: [ ] the appointment of members of the mission, their arrival and their final departure or the termination of their functions with the
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mission[.]” Vienna Convention, art. 10(1)(a), Apr. 18, 1961, 23 U.S.T. 3227 (emphasis added).
It further provides that
[w]hen the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of armed conflict.
Id. art. 39(2) (emphasis added). Article 43 of the Vienna Convention provides that
[t]he function of a diplomatic agent comes to an end, inter alia: (a) on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end; (b) on notification by the receiving State to the sending State that, in accordance with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a member of the mission.
Id. art. 43 (emphasis added); see Raya, 703 F. Supp. 2d at 576.
When interpreting a treaty or memorandum of understanding, [the Court] [is] guided by principles similar to those governing statutory interpretation. [The Court] must, of course, begin with the language of the [t]reaty itself. At this level, [t]he clear import of treaty language controls unless application of the words of the of the treaty according to their obvious meaning effects a result inconsistent with the intent or expectations of its signatories. To the extent that the meaning of treaty terms are not plain, [the Court] give[s] great weight to the meaning attributed to treaty provisions by the [g]overnment agencies charged with their negotiation and enforcement . . . . [W]here an agency has wide latitude in interpreting the [treaty], . . . [the Court] will defer to its reasonable interpretation.
Iceland S.S. Co. Ltd.-Eimskip v. U.S. Dep’t of Army, 201 F.3d 451, 458 (D.C. Cir. 2000) (fifth
and twelfth alterations in original) (emphasis added) (citations and internal quotation marks
omitted).
Here, the Court must “give ‘substantial deference’ to the State Department’s
interpretation of [the Vienna Convention], and in the context of diplomatic immunity, the
receiving state always has had ‘broad discretion to classify diplomats.’” Al-Hamdi, 356 F.3d at
571 (quoting Abdulaziz v. Metro. Dade Cty., 741 F.2d 1328, 1331 (11th Cir. 1984)). Moreover,
the plaintiff in this case “has failed to show how the [defendants’] interpretation violates the
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dictates of the Vienna Convention or infringes on the [Vienna] Convention’s purpose of ensur[ing] the efficient performance of the functions of diplomatic missions as representing States.” Id. (third alteration in original) (internal quotation marks omitted). Indeed, it is the plaintiff’s—not the defendants’—interpretation of the Vienna Convention that “violates the dictates of the Vienna Convention.” Id. The plaintiff’s interpretation of the Vienna Convention, i.e., that the plaintiff’s diplomatic function came to an end on September 1, 1994, the date when his diplomatic position was terminated, violates traditional canons of construction by rendering Article 43 of the Vienna Convention, which states that “[t]he function of a diplomatic agent comes to an end[] . . . on notification by the sending State to the receiving State that the function of the diplomatic agent has come to an end[,]” Vienna Convention art. 43(a) (emphasis added), “insignificant, if not wholly superfluous[,]” Duncan v. Walker, 533 U.S. 167, 174 (2001) (stating that it is the Court’s “duty to give effect, if possible, to every clause and word of a statute” (internal quotation marks omitted)); see Pielage v. McConnell, 516 F.3d 1282, 1288 (11th Cir. 2008) (“[T]reaties, like statutes, should be construed so that no words are treated as being meaningless, redundant, or mere surplusage.”). Accordingly, the Court concludes that the defendants’ interpretation of the Vienna Convention is reasonable.
Having concluded that the defendants’ interpretation of the Vienna Convention is reasonable, the Court next turns to whether the defendants have provided conclusive proof of the date of notification of the plaintiff’s termination, or whether further discovery is required. The defendants argue that “the Court should consider the [State] Department[’s] . . . certification as conclusive proof of the dates [the] [p]laintiff enjoyed diplomatic immunity.” Defs.’ Reply at 12. The plaintiff responds that “[t]his Court, and [the] [p]laintiff, are not obligated to accept the determination made by [the] [d]efendants regarding [the plaintiff’s] diplomatic status,
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particularly when the [State] Department . . . documents contradict themselves and the [State] Department[’s] . . . own prior determination.” Pl.’s Opp’n at 32. The Supreme Court has “stated that because Article II of the Constitution gave the executive branch the power to send and receive ambassadors, ‘the certificate of the [S]ecretary of [S]tate . . . is the best evidence to prove the diplomatic character of a person accredited as a minister.’” Al-Hamdi, 356 F.3d at 571 (quoting In re Baiz, 135 U.S. 403, 421 (1890)). Additionally, “[i]n cases of more recent vintage, circuit courts have continued to find the State Department’s certification conclusive.” Id. at 572 (collecting cases); see id. at 573 (“hold[ing] that the State Department’s certification, which [was] based upon a reasonable interpretation of the Vienna Convention, [was] conclusive evidence as to the diplomatic status of an individual”).
As support of their alternative motion for summary judgment in this case, the defendants submitted the State Department certification, executed by Mr. Donovan, which states that “[o]n February 6, 1995, the United Nations provided the [United States] Mission with official notification of [the plaintiff’s] termination from the Yemeni Mission . . . . [The plaintiff] and his family enjoyed diplomatic agent level immunity until February 6, 1995.” Defs.’ Mot., Ex. B (Donovan Cert.); see Pl.’s Opp’n at 2–3 n.2. This certification, which, as the Court has already concluded, “is based upon a reasonable interpretation of the Vienna Convention, is conclusive evidence as to the diplomatic status” of the plaintiff. Al-Hamdi, 356 F.3d at 573. Moreover, the defendants have provided additional records corroborating the State Department certification. See Donovan Decl., Ex. 1 (KARDEX Record for Ahmed Ali Muthana) (indicating that the plaintiff’s diplomatic status was terminated on February 6, 1995); id., Ex. 2 (TOMIS Record for Ahmed Ali Muthana) (same). Despite this documentation, the plaintiff responds that “the documents provided by [the] [d]efendants do not conclusively reveal the date on which the
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United States first learned of the end of [the plaintiff’s] duties.” Pl.’s Opp’n at 2 n.2. To counter the State Department certification, the plaintiff relies on a certification executed by Russell F. Graham, who previously served as the Minister Counsel of Host Country Affairs at the United States Mission, the position currently occupied by Mr. Donovan, “certify[ing] that . . . [the plaintiff] was notified to the United States Mission as a diplomatic member to the Permanent Mission of Yemen to the United Nations from October 15, 1990 to September 1, 1994.” Pl.’s Opp’n at 2 n.2; see Compl., Ex. C (certification by Russell F. Graham (Oct. 18, 2004)) (the “Graham certification”)). Additionally, the plaintiff argues that one of the exhibits submitted with Mr. Donovan’s declaration raises a question as to the date when the United States Mission received official notification of the plaintiff’s termination because it indicates that the plaintiff “left the [United States] Mission in September 1994[.]” Donovan Decl., Ex. 3 (termination list sent from United Nations Office of Protocol to United States Mission) (the “termination list”)). However, both the Graham certification and the termination list speak to the date of the plaintiff’s termination from the United States Mission, not the date when the United States Mission was notified of the plaintiff’s termination from the United States Mission. As discussed supra, it is the date of notification of the plaintiff’s termination—not the date of the termination itself—that governs the diplomatic immunity inquiry, and thus the Graham certification and the termination list do not undermine the determination in the State Department certification that the United States Mission did not receive notice of the plaintiff’s termination until February 6, 1995. Therefore, because the defendants have offered “conclusive evidence as to the diplomatic status” of the plaintiff at the time of Ms. Muthana’s birth, Al-Hamdi, 356 F.3d at 573, which the plaintiff has failed to rebut, “th[e] Court may not go behind the State Department’s determination that the plaintiff’s father enjoyed diplomatic privileges and immunities . . . through [February 6, 1995],
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or permit the plaintiff to engage in further discovery on this issue.” Raya, 703 F. Supp. 2d at
578. And, “[b]ecause the certification from the State Department conclusively establishes that
the plaintiff[] [ ] enjoyed diplomatic privileges and immunities in the United States on the date
that [Ms. Muthana] was born, [the Court is compelled to conclude that] [Ms. Muthana] is not a
United States citizen” by virtue of having been born in the United States,5 id., and John Doe is
not a United States citizen by virtue of being Ms. Muthana’s child.6
Relying on Magnuson v. Baker, a Ninth Circuit case, see Pl.’s Opp’n at 35–36 (citing
Magnuson v. Baker, 911 F.2d 330 (9th Cir. 1989)), the plaintiff argues that even if Ms. Muthana
did not become a United States citizen at the time of her birth, the defendants “should be
equitably estopped from disputing Ms. Muthana’s previously recognized citizenship based on
[the State Department’s] earlier determination” that Ms. Muthana was a United States citizen.
Id. at 33. Specifically, he alleges that “the United States, in recognition of Ms. Muthana’s
birthright citizenship, granted Ms. Muthana a United States passport in January 2005, and later
5 In Count Two, the plaintiff argues that Ms. Muthana became a citizen at birth based on “her mother’s pending legal residency and prior legal entry into the United States.” Compl. at 13 (emphasis added). However, this claim has no merit because, at the time of Ms. Muthana’s birth, Ms. Muthana’s mother was not a United States citizen and therefore, as the plaintiff’s wife, she too enjoyed diplomatic immunity at the time of Ms. Muthana’s birth. See Vienna Convention art. 37(1) (“The members of the family of a diplomatic agent forming part of his household shall, if they are not nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.”); see also Nikoi, 939 F.2d at 1066 (“Because one parent was a foreign official with diplomatic immunity when each child was born, the births did not confer United States citizenship.” (emphasis added)). 6 The following would be the legal basis for Ms. Muthana’s son acquiring United States citizenship at birth:
A person born abroad in wedlock to a [United States] citizen and an alien acquires [United States] citizenship at birth if the [United States] citizen parent has been physically present in the United States or one of its outlying possessions prior to the person’s birth for the period required by the statute in effect when the person was born ([Immigration and Nationality Act] [§] 301(g), formerly [Immigration and Nationality Act] [§] 301(a)(7)[]). For birth on or after November 14, 1986, the [United States] citizen parent must have been physically present in the United States or one of its outlying possession for five years prior to the person’s birth, at least two of which were after the age of fourteen.
Acquisition of U.S. Citizenship by a Child Born Abroad, U.S. Dep’t of State – Bureau of Consular Affairs, https://travel.state.gov/content/travel/en/legal/travel-legal-considerations/us-citizenship/Acquisition-US-CitizenshipChild-Born-Abroad.html (last visited Dec. 9, 2019). However, this means of acquiring United States citizenship at birth does not apply here since Ms. Muthana is not a United States citizen.
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renewed that passport in 2014.” Id. at 34. He argues that the “defendants are prevented by estoppel from now disputing Ms. Muthana’s citizenship[,]” id. at 33 (capitalization removed), because “[the plaintiff] and his daughter relied on this representation, and as a result did not take further action to procure or clarify her status in the United States, as they would have otherwise, and as [the plaintiff] did for [his] older children[,]” id. at 34. Additionally, he contends that “[t]here is no evidence to suggest that [the plaintiff] or his daughter (who was a minor at the time) acted in bad faith or presented anything but accurate information to the United States.” Id. at 34. The defendants respond that “courts cannot grant citizenship through use of equitable powers[,]” Defs.’ Reply at 18, and the “[p]laintiff’s allegations establish that the [State] Department . . . did exactly what it was statutorily authorized to do: revoke an erroneous grant of a passport in a routine exercise of the Secretary of State’s authority[,]” id. at 19.
At the outset, the Court notes that the plaintiff’s reliance on Magnuson is misplaced. Although the Ninth Circuit in Magnuson concluded that the Secretary of State could not revoke a previously-issued United States passport with a pre-revocation hearing “solely on the basis of ‘second thoughts[,]’” Magnuson, 911 F.2d at 336,
the legal landscape regarding cancellation of passports has changed substantially since Magnuson was decided in 1990. In 1994, Congress added a section to the Immigration and Nationality Act authorizing the Secretary of State to cancel passports and reports of birth if it appeared that they were obtained illegally, fraudulently, or erroneously. Atem v. Ashcroft, 312 F. Supp. 2d 792, 799 (E.D. Va. 2004). Section 1504 of Title 8 of the United States Code provides that “[t]he Secretary of State is authorized to cancel any United States passport or Consular Report of Birth, or certified copy thereof, if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary.” 8 U.S.C. § 1504(a). “In light of Congress’[s]
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enactment of § 1504, the Ninth Circuit’s conclusion [in Magnuson] . . . is no longer persuasive. This is so because Congress has now expressly authorized the Secretary of State to revoke passports in certain instances[.]” Atem, 312 F. Supp. 2d at 799.
Moreover, equitable relief is not otherwise available to Ms. Muthana in this instance. “Courts cannot grant citizenship through their equitable powers.” Hizam v. Kerry, 747 F.3d 102, 110 (2d Cir. 2014) (citing Immigration & Nationality Serv. v. Pangilinan, 486 U.S. 875, 885 (1988)); see also Pangilinan, 486 U.S. 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 these limitations.”). “When the State Department issues a [passport] it does not grant citizenship—it simply certifies that a person was a citizen at birth. Issuing or revoking a [passport] does not change the underlying circumstances of an individual’s birth and does not affect an individual’s citizenship status.” Hizam, 747 F.3d at 107 (citing 8 U.S.C. § 1504(a)); see Chacoty v. Tillerson, 285 F. Supp. 3d 293, 298 (D.D.C. 2018) (“The issuance or rescission of a [passport] [ ], ‘affect[s] only the document and not the citizenship status of the person.’ That is because . . . passports[] do not confer citizenship; rather, they merely provide proof of one’s status of as a citizen.” (quoting 8 U.S.C. § 1504(a)). Therefore, the State Department’s “[r]evo[cation] [of] [Ms. Muthana’s] [passport] did not change h[er] citizenship status. Instead, it withdrew the proof of a status [that] [s]he did not possess.” Hizam, 747 F.3d at 108. Thus,
[b]ecause the [passport] does not confer citizenship, and because [Ms. Muthana] is plainly not a citizen, . . . [an] order [by this Court] that the State Department reissue the [passport] [would] allow[] [Ms. Muthana] to maintain proof of citizenship without actually being a citizen . . . . Such an incongruous result cannot stand. Id. at 110; see Pangilinan, 486 U.S. at 884 (“Once it has been determined that a person does not qualify for citizenship, . . . the district court has no discretion to ignore the defect and grant
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citizenship.” (quoting Fedorenko v. United States, 449 U.S. 490, 517 (1988))). The Court must therefore deny the plaintiff’s request for equitable relief.
Accordingly, because the defendants have offered conclusive evidence that the plaintiff enjoyed diplomatic immunity at the time of Ms. Muthana’s birth and therefore Ms. Muthana did not acquire citizenship by birth and her son did not acquire citizenship as a child born abroad to a United States citizen, and equitable relief is not available to Ms. Muthana, the Court must grant summary judgment to the defendants on Counts One to Eight of the Complaint pursuant to Rule 56.
2. Count Nine The defendants argue that Count Nine should be dismissed pursuant to Rule 12(b)(1) because the “[p]laintiff has not established standing” on Count Nine and “improperly seeks an advisory opinion.” Defs.’ Mot. at 40. Specifically, the defendants argue that the “[p]laintiff has not alleged that he has a constitutional right to provide support to [Ms.] Muthana, which is necessity to establishing standing under the rule of Babbitt v. [United] Farm Workers.” Defs.’ Reply at 24 (citing Babbitt v. United Farm Workers, 442 U.S. 289 (1979)). The plaintiff counters that “he wishes to provide assistance to his daughter and grandson to assist with his daughter’s exercise of her constitutional right to return to the United States[,] [ ] [which] fits within the framework contemplated in Holder v. Humanitarian Law Project[.]” Pl.’s Opp’n at 38 (citing Holder v. Humanitarian Law Project, 561 U.S. 1 (2010)). However, the Court agrees with the defendants that the plaintiff does not have standing to bring Count Nine in his individual capacity. Where a plaintiff has yet to face prosecution under a statute he seeks to challenge, the Supreme Court, in Babbitt v. United Farm Workers, requires that he establish Article III standing by (1) “alleg[ing] an intention to engage in a course of conduct
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arguably affected with a constitutional interest, but proscribed by a statute,” and (2) demonstrating that “there exists a credible threat of prosecution thereunder.” Ord v. District of Columbia, 587 F.3d 1136, 1140 (D.C. Cir. 2009) (alteration in original) (quoting Babbitt, 442 U.S. at 299). The plaintiff’s reliance on Holder is misplaced. As the defendants correctly note, unlike the plaintiffs in Holder, who “brought a pre-enforcement constitutional challenge alleging that 18 U.S.C. § 2339B violated their constitutional rights,” Defs.’ Reply at 25; see Holder, 561 U.S. at 10–11 (“claim[ing] that the material-support statute was unconstitutional . . . [because] it violated their freedom of speech and freedom of association under the First Amendment” and “was unconstitutionally vague”), the plaintiff in this case does not challenge the legality of the statute; he merely seeks a declaratory judgment “that he may send money to ensure the survival of his daughter and grandson . . . without incurring liability under § 2339B[,]” Compl. at 27. Moreover, even assuming that the plaintiff is challenging the legality of the statute, he has not identified any personal constitutional right of his that would be affected. As the defendants correctly argue, the “[p]laintiff does not allege a constitutional right to transfer money abroad to an adult child.” Defs.’ Mot. at 41. And, because the plaintiff brings Count Nine individually, not in a next friend capacity, he cannot claim a violation of Ms. Muthana’s purported constitutional rights to establish his own standing on this claim. Thus, the plaintiff fails to satisfy the first prong of the Babbitt pre-enforcement standing test. The Court therefore grants the defendants’ motion to dismiss Count Nine of the Complaint pursuant to Rule 12(b)(1).
IV. CONCLUSION Every judge at some point in his or her career will have to decide a case he or she wishes had not been assigned to him or her. This is one of those cases.
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As the father of a daughter, the undersigned can appreciate the anguish the plaintiff is experiencing resulting from his daughter’s conduct. Unfortunately, children all too often make bad decisions, and sometimes those decisions can be life-altering, which is the consequence in this case. And, as the father of a daughter, the undersigned, if sympathy could rule the day, would have been tempted to provide at least some of the relief requested. However, emotions cannot play a role in the judicial decision-making process. Rather, adherence to law must control. That command—not the thousands of written, electronic, and telephonic communications directed to the undersigned, some of which can reasonably be construed as threats if the Court ruled in the plaintiff’s favor, nor compassion for the plaintiff, his daughter, or his grandson—caused the Court to rule as it has. While these rulings provide no sense of gratification to the undersigned, the analysis of the current state of the law precludes reaching any other conclusions on the issues raised in this case.
Accordingly, for the foregoing reasons, the Court grants the plaintiff’s renewed motion for expedited relief. The Court also grants in part and denies in part the defendants’ motion to dismiss. Specifically, the Court grants the defendants’ motion to dismiss to the extent that it seeks (1) entry of summary judgment for the defendants on Counts One to Eight for the Complaint pursuant to Rule 56 and (2) dismissal of Count Nine of the Complaint pursuant to Rule 12(b)(1), and denies the motion in all other respects.
SO ORDERED this 9th day of December, 2019.
REGGIE B. WALTON United States District Judge
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