Muthana v. Pompeo

985 F.3d 893

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

No. 19-5362

United States Court of Appeals, District of Columbia Circuit.

Argued May 15, 2020

Decided January 19, 2021

Christina A. Jump argued the cause for appellant. With her on the briefs was Charles D. Swift, Franklin, NC.

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.

John C. Eastman, Orange, CA, and Anthony T. Caso, Sacramento, CA, 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 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.

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 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.

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 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.

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...