Omar v. Kerry
| Decision Date | 16 February 2016 |
| Docket Number | Case No. 15-cv-01760-JSC |
| Parties | MOSED SHAYE OMAR, Plaintiff, v. JOHN KERRY, et al., Defendants. |
| Court | U.S. District Court — Northern District of California |
This lawsuit presents the question of whether the United States government may revoke a United States citizen's passport based solely on a purported "confession" that the citizen did not write, dictate, read, or have read to him, but did in fact sign. On the record before the Court, the answer is no.
Plaintiff Mosed Shaye Omar, a United States citizen, challenges the revocation of his passport following his interrogation and detention at the U.S. Embassy in Sana'a, Yemen. Plaintiff was stranded in Yemen for 13 months before he was provided written notice of the basis for his passport revocation and granted a temporary passport to return home to the United States. Plaintiff challenges the passport revocation and the constitutionality of the post-revocation proceedings wherein he sought return of his passport. The Court previously granted Plaintiff's motion for a preliminary injunction and ordered the government to return Plaintiff's passport. The now pending cross-motions for summary judgment followed. Having considered the parties' submissions, including their supplemental briefs, and having had the benefit of oral argument on December 17, 2015, the Court GRANTS Plaintiff's motion for summary judgment and DENIES the government's cross-motion. The government's revocation of Plaintiff's passport predicated solely on his "confession" was arbitrary and capricious. The matter is therefore REMANDED for a new hearing within 60 days.
Plaintiff was born in Yemen in 1951, but immigrated to the United States in 1972 through his uncle who adopted him following the death of Plaintiff's parents. (Administrative Record ("AR") at 155-160 ¶¶ 1-2 (Declaration of Mosed Shaye Omar).) Plaintiff became a United States naturalized citizen on April 10, 1978. (Id. at ¶ 3; AR 148 (Certificate of Naturalization).)
In July 2012, Plaintiff traveled to Yemen to assist his youngest daughter K.O. in obtaining a U.S. Passport. (AR 155 at ¶ 4.) He attended an interview at the U.S. Embassy in Sana'a in August 2012, but did not hear anything regarding the status of the application for several months during which time he remained in Yemen. (Id. at ¶¶ 4-5.) Plaintiff is a diabetic and has high blood pressure, and he takes several medications for these conditions, medications which he could not obtain in Yemen. (Id. at ¶ 1.) By December 2012, Plaintiff had run out of medication and his health had deteriorated. (Id. at ¶ 5.) He therefore contacted the U.S. Embassy to follow up on the application's status and advised officials that he intended to return to the United States for health reasons. (Id. at ¶ 6.) He purchased a return flight for late January 2013. (Id.)
A few days before he was due to depart, Plaintiff received a call from the U.S. Embassy regarding his daughter's passport and requesting that he visit the Embassy. (Id. at ¶ 7.) Upon arriving at the Embassy early the next morning, Plaintiff was asked by a consular officer to provide his passport, which he did. (Id. at ¶ 8.) Shortly thereafter, he was taken from the waiting room to another "more secure area" and another building with armed and uniformed U.S. military personnel. (AR 155-56 at ¶ 9.) To enter the second building, he was escorted through two locked doors which required a special code to open. (Id.) Plaintiff was then escorted into an interrogation room with two Americans and an interpreter. (AR 156 at ¶ 11.) Plaintiff had difficulty understanding the interpreter given his dialect, and at times, he could not tell if theinterpreter was one of the interrogators. (Id. at ¶ 12.) He was not advised of his right to remain silent or his right to consult an attorney, nor did he know he had the right to remain silent or to leave and consult with an attorney. (Id. at ¶¶ 13-14.) Plaintiff believed he had to participate in the interview to obtain his daughter's passport and his own. (Id. at ¶ 15.) He was questioned for an hour regarding his parents and other family members and then he was returned to the general waiting room and told to wait. (AR 157 at ¶ 18.) He did not feel he could leave without permission and the Embassy officials had his passport which he needed for his flight home in a few days. (Id.)
After about an hour and half of waiting, he was returned to the interrogation room where he was questioned for another hour. (Id. at ¶¶ 19, 21.) During this time, he began to feel sick and weak as he had not had any food or water, and he did not have his medication with him. (Id. at ¶ 20. ) His vision also started to blur which is a symptom of his diabetes. (Id. at ¶ 21.) After an hour of questioning, Plaintiff was again escorted back to the waiting room and told to wait. (Id. at ¶ 21. ) He was unable to contact his family or friends because his cell phone had been taken and there were no phones for public use. (Id. at ¶ 22.) After several hours of waiting, everyone started leaving the Embassy and at 4:00 p.m. he was "feel[ing] desperate and very afraid" so he told the guard he would do anything to get his passport back and be allowed to leave. (Id. at ¶ 24.)
Plaintiff was then escorted to the interrogation room by two individuals, because his vision had become so blurry he could not tell if it was the same two individuals as before or different individuals. (AR 157-58 at ¶¶ 24-25.) He was handed a piece of paper and told to sign it to get his passport returned. (Id. at ¶ 26.) Plaintiff could not read the paper because his vision was so blurry and the interpreter did not read the document to him or tell him what the document was. (Id. at ¶ 27.) After he signed it, he was returned to the waiting room and after half an hour he was told that he would not have his passport returned because he had another name. (Id. at ¶ 28.) Plaintiff was not told that the document he signed was a statement admitting that he had used a false name and committed various other acts, nor was he advised as to why his passport had been confiscated or how he could get it back. (Id. at ¶¶ 29-30.) Plaintiff was thereafter escorted out of the waiting room and as a result of the stress and lack of food, water, or medication, he had to betaken to a doctor that night. (Id. at ¶¶ 31, 33; Dkt. No. 14-31 at 4.)
Plaintiff missed his flight home because he did not have a passport. (AR 159 at ¶ 35.) Although he repeatedly contacted the Embassy, he was unable to discover anything about his passport until 11 months later, in December 2013, when he received a call from the Embassy advising him to come in. (Id. at ¶¶ 38-39.) When he visited the Embassy on December 15, 2013, he was given a letter which stated that his passport had been revoked pursuant to 22 C.F.R. § 51.62(a)(2) based on his "sworn statement admitting that [his] true identity is Yasin Mohamed Ali Alghazali" which meant that he made a "false statement of material fact" in obtaining his passport application under the name Mosed Shaye Omar. (Id. at ¶ 39; AR 111-12 (Dec. 15, 2013 letter).) The letter also advised Plaintiff of his right to a hearing upon written request. (AR 364.)
In January 2014, Plaintiff contacted the Embassy to advise that his health condition had become dire and he needed to return to the United States for treatment. (AR 159.) In February, he was granted a temporary passport and he returned home on February 21, 2014. (Id. at ¶¶ 41-42.) His temporary passport was confiscated by U.S. Customs and Border Protection when he landed at San Francisco International Airport. (Id. at ¶ 41.) About two weeks after he returned home, he had a heart attack and had a stent placed in his heart. (Id. at ¶ 42; Dkt. No. 14-38 at ¶ 2.)
Plaintiff sought administrative review of his passport revocation pursuant to the provisions set forth in the December 15, 2013 letter. On August 6, 2014, he was notified that his passport revocation hearing was scheduled for September 22, 2014. (AR 35-36 (Aug. 6, 2014 letter).) The letter advised that the "only issue for consideration and decision will be whether or not the Department satisfied the requirements or conditions of the applicable passport regulations cited as the basis for its adverse action, not your citizenship status." (Id.) Plaintiff subsequently obtained counsel who attempted to postpone the hearing to allow additional time to prepare, but no postponement was allowed, although the government granted a seven-day extension of the briefing schedule. (AR 44-90.)
On September 22, 2014, Plaintiff and his counsel appeared for the hearing via video link with Bennett S. Fellows, Division Chief of the Office of Adjudication, serving as the hearing officer. (AR 450-503 (Transcript of Sept. 22, 2014 hearing).) A month later, Plaintiff wasadvised that Deputy Assistant Secretary Brenda Sprague had approved Hearing Officer Fellows' October 17, 2014 recommendation affirming the revocation of Plaintiff's passport because his use of the name "Mosed Shaye Omar" to obtain a passport constituted a fraud in violation of 22 C.F.R. § 51.62(a)(2). (AR 635-640 (Oct. 17, 2014 letter).)
Plaintiff filed this civil action on April 20, 2015 seeking return of his passport and a declaration that Defendants—the United States Department of State, John Kerry as the Secretary of State, Brenda Sprague as the Deputy Assistant Secretary of Passport Services, and Michele Bond as the Acting Assistant Secretary for Consular Affairs, (collectively "Defendants" or "the government")—violated his rights under the Constitution, the Administrative Procedures Act ("APA"), and 8 U.S.C. § 1504. (Dkt. No. 1.) Plaintiff alleges six causes of action under the APA: (1) Defendants interpretation and application of 8 U.S.C. § 1504 is unconstitutional and exceeds their statutory authority; (2) Defendants failed to apply...
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