Saleh v. Blinken
| Decision Date | 30 March 2022 |
| Docket Number | 17-CV-4574 (RPK) (CLP) |
| Parties | ARAFAT ALI SALEH, Plaintiff, v. ANTONY BLINKEN, Secretary of State-United States Department of State, UNITED STATES DEPARTMENT OF STATE, NATIONAL PASSPORT CENTER, UNITED STATES CUSTOMS AND B PROTECTION, U.S. ATTORNEY, and ATTORNEY GENERAL, Defendants. |
| Court | U.S. District Court — Eastern District of New York |
Plaintiff Arafat Ali Saleh brings this action under the Administrative Procedure Act (“APA”), 5 U.S.C. § 701 et seq., alleging that the government's decision to revoke his passport was arbitrary and capricious. See Am. Compl. ¶ 44 (Dkt. #25). The government moves for summary judgment on the Certified Administrative Record (“AR”). See Defs.' Mem. in Supp. of Mot. for Summ. J. (Dkt. #83-1) ( ); Second Revised AR (Dkt. #90) (“AR”). Plaintiff moves for additional discovery pursuant to Federal Rule of Civil Procedure 56(d). See Decl. of Julie A. Goldberg in Opp'n to Defs.' Mot. for Summ J. & for Discovery Pursuant to Fed.R.Civ.P. 56(d) (Dkt. #86) (“Pl.'s Mem.”). For the reasons stated below, plaintiff's motion for discovery is denied, and defendants' motion for summary judgment is granted.
The following facts are drawn from the AR unless otherwise noted. See Clifford v. U.S. Coast Guard, 915 F.Supp.2d 299 307 (E.D.N.Y. 2013), aff'd, 548 Fed.Appx. 23 (2d Cir. 2013) (summary order).
Plaintiff's father, Ali Nagi Saleh, was born in Yemen in 1952 and first arrived in the United States on June 12, 1969. See AR 36, 60; cf. AR 56 (indicating arrival on June 18 1969). In an affidavit submitted to the United States Department of State (“State Department”), Ali Nagi asserted that he lived in the United States from June 12, 1969, until April 27, 1973. AR 60. According to that affidavit, Ali Nagi was next in the United States from March 30, 1974, to August 28, 1977. Ibid. In 1975, he became a naturalized citizen. AR 106. The affidavit states that Ali Nagi was also physically present in the United States from June 19, 1981, to September 8, 1982, and from March 15, 1985, to September 16, 1986. AR 60. Ali Nagi died in Yemen on July 30, 1995. AR 94, 209.
Plaintiff was born in 1983 in Yemen. AR 207. Plaintiff has several siblings including, as relevant here, an older brother named Salah and a younger brother named Walid. See Defs.' Mem. 3-4; AR 61 (redacted list of Ali Nagi's children). At the time of plaintiff's birth in 1983, a child born outside the United States to a United States citizen and “an alien” was eligible for citizenship if the citizen parent “was physically present in the United States” for at least ten years total prior to the child's birth. See 8 U.S.C § 1401(g), amended by Pub. L. No. 99-653, § 12, 100 Stat. 3657 (1986).
In April 1998, plaintiff first applied for a U.S. passport. See AR 203-04. In support of that application, plaintiff submitted an affidavit that lists different dates for Ali Nagi's time in the United States than Ali Nagi's earlier affidavit. See AR 205. Plaintiff's affidavit indicates that Ali Nagi was in the United States from June 10, 1969, to April 27, 1973; from March 30, 1974, to August 28, 1978; from June 18, 1981, to September 7, 1982; from March 15, 1985, to September 16, 1986; and from October 25, 1988, to October 7, 1993. Ibid. Because Ali Nagi had died and plaintiff could not make a sufficient showing that Ali Nagi was his father, the application was denied. See AR 202.
In July 2006, plaintiff visited the United States Embassy in Yemen to reapply for a passport. See AR 137. Notes in the Embassy's activity log from plaintiff's 2006 visit suggest that plaintiff had not proved that his father had acquired the requisite ten years of physical presence in the United States. See ibid. The notes also indicate that plaintiff had again failed to prove his relationship with his father. Ibid. The AR does not include a passport application related to the 2006 visit. But notes from November 2006 state that plaintiff “[a]bandoned” the July 2006 attempt to obtain a passport because plaintiff failed to establish a parent-child relationship with a United States citizen. Ibid.
Plaintiff filed another passport application on September 9, 2009. See AR 211. That day, Salah and Walid also filed passport applications. See AR 68-69, 72-73. An unsigned affidavit submitted with the applications states that Ali Nagi was physically present in the United States from 1969 to 1973; 1973 to 1978; 1981 to September 8, 1982; March 15, 1985, to September 16, 1986; and October 25, 1988, to October 7, 1993. AR 74. The brothers also appear to have submitted a Social Security earnings statement for Ali Nagi that records dates that Ali Nagi earned income in the United States. See AR 76-79; see also AR 116-18 (legible copy of the earnings statement). The statement reflects that Ali Nagi earned income in the United States from 1969 to 1977, as well as in 1981, 1982, and several years after plaintiff was born. See AR 77, 117. In addition, the brothers submitted other documents in support of their applications like various tax documents, Ali Nagi's naturalization and death certificates, their own birth certificates, and a DNA analysis report. See AR 80-92, 94-126.
An Embassy note from the date of plaintiff's 2009 application suggests that the consular officer was unpersuaded by that evidence. “Real questions on relationship, age[, ] and physical presence, ” the officer wrote, explaining that Ali Nagi's “[s]ocial security earnings and taxes stil[l] may not prove [the necessary ten years of] physical presence” such that any of the brothers qualified for citizenship. AR 139. On January 30, 2010, the Embassy notes indicate that the brothers “came back with bits and pieces” but not enough to establish the required period of physical presence. Ibid. That day, the Embassy closed the case. Ibid.
On August 4, 2010, plaintiff filed another passport application. See AR 213. The Embassy notes from that day state that “[s]ubjects came . . . with nothing new.” AR 135. A consular officer was assigned to review the application. See ibid.
The consular officer who reviewed plaintiff's 2010 application stated that it was “O.K. [t]o [a]pprove” it. AR 140. The Embassy notes indicate that the officer “reviewed past notes on case and evidence on record.” Ibid. The officer claimed that Ali Nagi's social security records “show[] earnings from 1961 to 1998.” Ibid. Relying on those records, the officer concluded that Ali Nagi's earnings proved that his “physical presence [was] sufficient . . . to transmit citizenship to [plaintiff].” Ibid.
A consular supervisor then forwarded plaintiff's application, applications from Salah and Walid, and supporting documents to a specialist in the Office of Overseas Citizen Services. See Defs.' Mem. 8; AR 142-43. In addition to the applications, the supervisor's email attached scans of Ali Nagi's United States passport, marriage and death certificates, and Social Security earnings report. See AR 143, 144-66. The specialist decided that there was “sufficient evidence to prove transmission” of citizenship to plaintiff and told the supervisor that she could “go ahead with” issuing a passport based on the notes in the Embassy log system. AR 142. The Embassy then issued passports to plaintiff and his brothers. See Defs.' Mem. 9; AR 131, 140.
On May 24, 2011, Walid filed an Application for Certificate of Citizenship claiming that he acquired citizenship at birth through Ali Nagi. See AR 20. Along with the application, Walid submitted various supporting documents, including six pages of Social Security benefits statements and copies of certain pages from Ali Nagi's passports. See ibid. Because Walid had not submitted sufficient evidence from which the U.S. Citizenship and Immigration Services (“USCIS”) could conclude that the ten-year physical presence requirement had been met, the government requested Walid provide additional materials. AR 21-22. Walid did not respond, and so USCIS denied the application as abandoned under 8 C.F.R. § 103.2(b)(13)(i). AR 22. The government also denied the application because Walid had failed to submit sufficient evidence to demonstrate that Ali Nagi had been physically present in the United States for ten years prior to Walid's birth. AR 22. The Detroit Field Office of USCIS then sent a memorandum to the State Department on September 16, 2011, requesting that Walid's passport be revoked. AR 17-19.
It took the State Department almost three years to act on the USCIS request. On March 20, 2014, a lawyer in the Bureau of Consular Affairs submitted an Advisory Opinion (“AO”) recommending that plaintiff's, Walid's, and Salah's passports be revoked “because they presented insufficient evidence to demonstrate their . . . father met the physical presence requirements to transmit . . . citizenship to them.” AR 3; see Defs.' Mem. 11. The AO explains that plaintiff and his brothers were issued passports in 2010 after the consular officer “claimed to have reviewed documentation show[ing] that [their father] was physically present as early as 1961.” AR 11. But the AO concludes that there was “no such evidence in the record.” Ibid.
Moreover, the AO notes that Ali Nagi's own affidavits “never alleged that he was physically present prior to June 1969” and failed to allege ten years of physical presence prior to plaintiff's birth. AR 12.
On April 25, 2014, the State Department sent a message to the Embassy “request[ing]” “assistance . . . in the revocation of [a] . . . passport . . . erroneously issued on August 18, 2010[, ] to [plaintiff].” AR 223 (capitalization modified). The message stated that the revocation was pursuant to 22 C.F.R. § 51.62(a)(2),...
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