Moncada v. Blinken

680 F.Supp.3d 1190

Roberto MONCADA, Plaintiff, v. Antony BLINKEN, in his official capacity as U.S. Secretary of State, Defendants.

Case No. CV 19-01293-AB

United States District Court, C.D. California

Signed July 6, 2023

Carlo Brooks, Robert G. Berke, Berke Law Offices Inc., Canoga Park, CA, for Plaintiff.

Ruth Ann Mueller, Alexander James Halaska, P. Angel Martinez, U.S. Dept. of Justice - Office of Immigration Litigation, Civil Division, Washington, DC, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

TRIAL DATE: September 28, 2022

ANDRÉ BIROTTE JR., UNITED STATES DISTRICT COURT JUDGE

This matter was tried before this Court, sitting without a jury, on September 28, 2022.

Robert G. Berke and Carlo Brooks appeared on behalf of Plaintiff Roberto Moncada. Ruth Ann Mueller and Angel Martinez appeared on behalf of Defendant, Antony Blinken, in his official capacity as United States Secretary of State.

Having heard the admissible evidence presented by the parties, the arguments of counsel, and having considered the demeanor and credibility of the witness and all papers and exhibits presented by the parties for purposes of this trial, the Court makes the following findings of fact and conclusions of law pursuant to Rule 52 of the Federal Rules of Civil Procedure.

Introduction

Mr. Moncada has lived his entire life as a United States citizen because the United States government told Mr. Moncada that he was a citizen. And then they told him again. (See e.g., Dkt. No. 125, Stipulated Fact ("SF") 7.) And again. (Id.) And again. (Id.) And again. (Id.)

Indeed, on multiple occasions, the government sought to answer precisely the same question animating this litigation: What was Mr. Moncada's father's diplomatic status at the time of Mr. Moncada's birth? And on multiple occasions, the government determined that because Dr. Moncada did not have full diplomatic immunity at the time of his son's birth, "Roberto Moncada would therefore have acquired U.S. citizenship at birth." (Ex. 29 at DEF-00000018.)

However, on July 27, 2018, the government finally (and somewhat curiously) stumbled across its mistake, and Mr. Moncada—two years shy of 70—received a letter revoking his passport and, in effect, his citizenship.

At trial, the government categorized its near seventy-year error as "a very unfortunate and regrettable situation" telling the Court that "[w]e do not hide the fact that this is unfortunate, this is regrettable, but there were mistakes that were made . . . these are unfortunate administrative errors . . ." (Tr. at 176:16-20.) The "unfortunate and regrettable" defense is not one that the Court has ever known the government to accept from a Defendant. But for Mr. Moncada, apparently, it will have to do.

The Court is unable to grant the relief Mr. Moncada seeks because it is constrained by the applicable law, as set forth below. The government, though, is not.

FINDINGS OF FACT

A. The United States Mission to the United Nations

1. The United States Mission to the United Nations ("USUN") is the U.S. permanent mission that represents the United States at the United Nations. (See Tr. 12:11-13, 14:20-25.)

2. The USUN is "its own entity under the Department of State." (Id. at 53:19-54:4) (Donovan).

3. A permanent mission to the United Nations is a diplomatic mission in New York that houses the diplomatic delegation of a member state to the United Nations. (Id. at 109:17-19; Dkt. No. 143-1 at 3 ¶ 8.)

4. James B. Donovan serves as the Minister Counselor for Host Country Affairs Section at USUN ("Minister Counselor"). The Host Country Affairs Section is charged with "[a] variety of responsibilities that pertain to the obligations that the U.S. has to the United Nations and that are spelled out in the UN headquarters agreement that the United States signed with the United Nations . . . in 1947 as host country of the United Nations." (Id. at 12:11-13, 13:10-14) (Donovan).

5. "Minister Counselor" is "a diplomatic label for a position within the mission." (Id. at 12:17) (Donovan).

6. Minister Counselor Donovan has held his position since 2012. (Tr. 13:7-8) (Donovan).

7. The Court found Minister Counselor Donovan to be a credible witness.

8. One of Minister Counselor Donovan's primary responsibilities is "to register [the foreign diplomats who come to serve their countries at their missions to the United Nations] . . . and accredit them and recognize those that are eligible with privileges and immunities." (Id. at 13:15-19) (Donovan).

9. The office of Host Country Affairs "exist[s] to support the foreign diplomats in a variety of ways." (Id. at 13:21-22) (Donovan).

10. The only office at the U.S. Mission that affords privileges and immunities to U.N. diplomats is the office of Host Country Affairs. (Id. at 14:22-25.)

11. There are no other offices within the U.S. government that afford privileges and immunities to diplomats "of other countries of the United Nations that are posted to the United States." (Id. at 15:1-5) (Donovan).

12. Employees at the USUN are Department of State employees and report "to the ambassadors who are representing and serving at the [USUN]." (Id. at 50:17-20) (Donovan).

13. Presently, if questions arise regarding an individual's diplomatic privileges and immunities, such questions are referred to Minister Counselor Donovan because it is his responsibility "to review and analyze these cases." (Id. at 15:19-16:1) (Donovan).

14. Minister Counselor Donovan worked directly on determining whether Plaintiff's father, Dr. Jose Maria Moncada, had diplomatic privileges and immunities at the time of Plaintiff's birth. (Id. at 16:2-5.)

B. The Process for Recognizing Diplomats with Full Diplomatic Privileges and Immunities

15. There are—both today and at the time of Plaintiff's birth—two levels of diplomatic immunity that are granted by the USUN: (1) Full Diplomatic Privileges and Immunities; and (2) Official Acts Immunities. An individual who serves his or her mission in an administrative capacity—including, for instance, as a chauffeur or a chef—is entitled to "official acts immunities." Such an individual would possess immunity only for actions that flow from their employment responsibilities and would not be entitled to full diplomatic privileges and immunities. Conversely, an individual who serves his or her mission in a diplomatic capacity would be entitled to full diplomatic privileges and immunities and thus would not be subject to the jurisdiction of the United States. (Id. at 58:8-59:5) (Donovan).

16. The Host Country Affairs Section has a process for recognizing diplomats with full diplomatic privileges and immunities and creating internal records documenting such privileges and immunities. This process is substantively the same today—accounting for changes in technology—as it was at the time of Plaintiff's birth. (Id. at 24:16-18, 34:4-16, 112:15-22) (Donovan).

17. Information that was once contained in a paper file called a "KARDEX" is now retained in a computerized database called "TOMIS." (Id. at 22:15-18; 112:20-22.)

18. Before a diplomatic family arrives in the United States, their respective mission typically would "communicate via diplomatic note to the Office of UN Protocol the name of the diplomat, the diplomatic title, the work that [the diplomat is] going to be doing at the mission, as well as any family members . . . [and this information] would all be sent by diplomatic note to the UN Office of Protocol, which would then . . . verify [the information.]" (Id. at 32:7-15) (Donovan).

19. The U.N. reviews this information and "has to check a few boxes" to determine whether a given individual is entitled to full diplomatic privileges and immunities. Namely, the UN determines whether the individual has a diplomatic title and whether the individual will, in fact, be doing diplomatic work. (Tr. at 54:21-24) (Donovan).

20. After this verification takes place, the U.N. Office of Protocol sends the relevant information to the USUN with two requests: (1) A request to register the individual; and (2) a request for recognition with privileges and immunities, if there is a determination that "it's a diplomatic person." (Id. at 32:16-20) (Donovan).

21. Before the implementation of the TOMIS system, this registration was memorialized in a physical paper index card called a KARDEX. KARDEX cards included the following information: "[T]he name of the diplomat, their rank, their diplomatic title . . . the country [the diplomat was] serving from, and then any family members who were notified to [the USUN]." (Id. at 22:15-22) (Donovan).

22. KARDEX cards were created for each diplomat and filed in alphabetical order in a card catalog file that still exists at the USUN Office, with records dating back to 1947. (Id. at 29:20-24) (Donovan).

23. Typically, because all members of a diplomatic household are recognized with full privileges and immunities, the USUN "would want the entire family to be listed" on the KARDEX. (Id. at 35:1-4) (Donovan).

24. Often times, however, KARDEX cards were not updated to reflect the birth of a child into a diplomatic household because, inter alia, the respective mission did not report the birth to the USUN. (Id. at 35:15-19) (Donovan).

25. Whether or not an individual family member's name was listed on the KARDEX card had no bearing on "the level of privileges and immunities" that they possessed at that time. (Id. at 31:10-14, 35:23-36:1) (Donovan).

26. As noted supra, today, information previously recorded through KARDEX is now collected in a computerized database called TOMIS. TOMIS accomplishes "virtually the same [purpose as the KARDEX system], only it's done in the computer world instead of on a piece of paper." (Id. at 112:15-22, 72:12-13) (Donovan).

27. "The USUN Blue List contains members of delegations to the United Nations entitled to diplomatic privileges and immunities." (Id. at 24:7-9) (Donovan).

28. The USUN Blue List does not contain the names of individuals who possess only...