Omar v. Tillerson
| Decision Date | 28 November 2017 |
| Docket Number | Case No.15-cv-01760-JSC |
| Court | U.S. District Court — Northern District of California |
| Parties | MOSED SHAYE OMAR, Plaintiff, v. REX TILLERSON, et al., Defendants. |
Mosed Shaye Omar, a United States citizen, challenges the revocation of his passport following his interrogation and detention at the United States Embassy in Sana'a, Yemen, as well as the constitutionality of the post-revocation proceedings. The Court previously granted summary judgment in Plaintiff's favor and remanded to the State Department to provide Plaintiff with a full and fair hearing. On remand, the agency again upheld the revocation on the same basis. The parties' cross-motions for summary judgment are now pending before the Court. (Dkt. Nos. 80 & 81.)
The motions present a question of first impression: whether the United States government may revoke a citizen's passport on the grounds that his "true identity" is different from the name on his passport, even though the passport name is his unchallenged legal name. In particular, has the government met its burden to demonstrate that a citizen used fraud in obtaining a passport when the citizen applied for the passport in the name he has lived under since at least 1978, and that same allegedly fraudulently name is the name on the citizen's unchallenged certificate of naturalization, driver's license, social security card, and tax returns, among other documents identifying the citizen? The answer is no and thus the government's revocation of Plaintiff's passport was arbitrary and capricious. Accordingly, the Court grants Plaintiff's motion for summary judgment and denies the Government's cross motion.
The Court summarized the factual record in detail in its prior two orders. (Dkt. Nos. 52 & 69.) Because the factual record is largely unchanged, the Court incorporates the recitation of the evidence from its prior orders by reference.
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, and various State Department officials, (collectively "Defendants" or "the government")—violated his rights under the Constitution, the Administrative Procedures Act ("APA"), and 8 U.S.C. § 1504.1 (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 the "clear and convincing evidence" standard of proof at his passport revocation hearing; (3) Defendants improperly relied on an involuntary statement obtained in violation of Plaintiff's Fifth Amendment rights to revoke his passport; (4) Defendants failed to timely provide Plaintiff with written notice or a prompt hearing following revocation of his passport in violation of his Fifth Amendment rights; (5) Defendants' actions were arbitrary and capricious; and (6) Defendants failed to comply with APA rules of adjudication with respect to Plaintiff's passport revocation hearing. (Complaint ¶¶ 120-155.)
Plaintiff filed a motion for preliminary injunction seeking the return of his passport. (Dkt. Nos. 14 & 23.) The Court granted the motion and ordered the government to return his passport. (Dkt. No. 52.) The Court then granted Plaintiff's motion for summary judgment concluding that (1) the statement made by Plaintiff at the US Embassy in Sana'a Yemen on January 23, 2013 ("the Statement") was not substantial evidence of fraud; (2) the Hearing Officer erred in failing to set forth and apply any standard of proof in the revocation proceeding; and (3) the Hearing Officererred in failing to require the government to bear the burden of proof. (Dkt. No. 69.) The Court held that that a citizen's right to travel is a fundamental right and that revocation of a passport, particularly when it occurs while the individual is outside the United States, significantly infringes upon that right, but the Court left it to the State Department to decide in the first instance whether the standard of proof for such a revocation was by a preponderance of the evidence or clear and convincing evidence. The Court then remanded to the State Department to afford Plaintiff a full and fair hearing regarding the government's allegation that Plaintiff's passport is subject to revocation under 22 C.F.R. § 51.62(a)(2).
In the remanded proceeding, and after many extensions of the briefing schedule, the government filed its brief in support of the passport revocation on March 11, 2016. (Supplemental Certified Administrative Record ("SAR") 10.) The only evidence offered in support of the government's brief was (1) Plaintiff's passport application; (2) the letter revoking Plaintiff's passport; and (3) Plaintiff's January 23, 2013 Statement. (SAR 18-27.) Plaintiff's opposition brief was accompanied by several exhibits including, but not limited to, Plaintiff's September 14, 2014 declaration disavowing the Statement and attesting to its involuntariness; Plaintiff's certificate of naturalization; Plaintiff's California driver's license, Social Security card, AFL-CIO membership card, and his 2010 Federal Income Tax Return; Plaintiff's April 1972 vaccination record; and a translation of an affidavit of four individuals in Yemen who attest that they knew Plaintiff by the name Mosed Shaye Omar and no other name prior to 1972. (SAR 58-241.)
The government's reply brief argued that Plaintiff's Statement was voluntary, Plaintiff has shown a willingness to provide false statements and documentation to the State Department in the past, and that substantial evidence confirmed the veracity of Plaintiff's Statement. In support of its brief, the government offered six exhibits—all of which pre-date the government's opening brief in the remanded passport revocation proceeding—including: (1) a declaration from David W. Howell, the Special Agent with the U.S. Department of State, who obtained Plaintiff's January 23, 2013 Statement; (2) Plaintiff's 2002 and 2007 passport applications for his daughter; (3) Yemeni identification and vehicle cards in the name Mosed Shaye Omar Al Ghazali from 2012; and (4) adeclaration from Special Agent Aaron Ure and DNA test results for Plaintiff and two men Plaintiff previously claimed as his sons. (SAR 260-339.) The government stated it would present at the hearing Agent Howell and Consular Fraud Investigator Mohamed (last name withheld) who acted as a translator during Plaintiff's January 23, 2013 interview at the embassy. (SAR 257.)
In response, Plaintiff submitted a declaration from Bernard Haykel, professor of Near Eastern Studies at Princeton University, regarding dates of birth and naming conventions in Arabian countries. Professor Haykel attests that dates of birth are somewhat arbitrary in Yemen, and it is not uncommon for someone to have four names, but only use three. (SAR 341.) Plaintiff also submitted (1) DNA test results for himself and his daughter; (2) a declaration of a woman from Yemen attesting that Al Ghazali is a common name in Yemen and that Yemeni documents require individuals to list four names; (3) a declaration from an endocrinologist; (4) a news article stating that the Department of State's Office of Inspector General was conducting an investigation regarding the US Embassy in Sana'a, Yemen; (5) a declaration from an attorney with the Creating Law Enforcement Accountability & Responsibility project who had spoken to several US citizens who had problems with their passports being revoked at the US Embassy in Sana'a, Yemen; and (6) a January 25, 2016 letter from several organizations asking the Department of State's Office of Inspector General to conduct an investigation into passport revocations at the US Embassy in Sana'a, Yemen. (SAR 346-440.)
Plaintiff thereafter repeatedly sought confirmation that Agent Howell and Investigator Mohammed would testify at the December 5, 2016 hearing. (SAR 1251 (); SAR 1258 (); SAR 1262 (); SAR 1266 ().) It was not until December 1—two business days before the hearing—that the government advised Plaintiff and the Hearing Officer that it did not intend to present any live witnesses after all. (SAR 441.) At that point, the government offered theaffidavit of Investigator Mohammed. (SAR 445.) At the hearing, Plaintiff objected to the declarations and asked the Hearing Officer to exercise his discretion under 22 C.F.R. § 51.71(d) to order a video deposition of Agent Howell and Investigator Mohammed. (SAR 500.) The Hearing Officer stated (SAR 504.)
On March 2, 2017, the Hearing Officer issued his decision. The Officer concluded that the government had met its burden of showing by a preponderance of the evidence that Plaintiff's true identity was Yasin Mohamed Ali Alghasali and not Mosed Shaye Omar and that because Plaintiff made a false statement of material fact in his passport application, his passport was properly revoked under 22 CFR § 51.62(a)(2). (SAR 1215.) The Hearing Officer concluded further that the Statement was properly obtained in light of the declarations of Agent Howell and Inspector Mohammed. (SAR 1228.) The Hearing...
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