Sabra v. Pompeo

453 F.Supp.3d 291

Mohammed SABRA, AS NEXT FRIEND OF BABY M, Plaintiff,

v.Michael POMPEO, in his official capacity as Secretary of the United States Department of State, Defendant.

No. 19-cv-2090 (EGS)

United States District Court, District of Columbia.

Signed March 9, 2020

Filed April 2, 2020

Caroline Kelly, Dorothy Ames Jeffress, Arnold & Porter Kaye Scholer LLP, Washington, DC, Charles Davidson Swift, Leila E. Mustafa, Christina A. Jump, Constitutional Law Center For Muslims in America, Richardson, TX, for Plaintiff.

Diana Viggiano Valdivia, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

REDACTED

MEMORANDUM OPINION

Emmet G. Sullivan, United States District Judge

I. Introduction

Plaintiff Mohammed B. Sabra ("Mr. Sabra"), a naturalized U.S. citizen and a California resident, brings this action as next friend of "Baby M"¹ against Defendant Michael Pompeo, in his official capacity as the Secretary of the United States Department of State (the "Secretary"). Mr. Sabra claims that his wife, Ponn M. Sabra ("Mrs. Sabra"), gave birth to their daughter, Baby M, in Gaza. Mr. Sabra contends that Baby M became a U.S. citizen at birth because both of her parents are U.S. citizens. Under 8 U.S.C. § 1401(c), a child born abroad acquires U.S. citizenship if both parents are U.S. citizens and one of them has had a residence in the United States before the child's birth. Congress granted the Secretary the authority to determine the citizenship of a person outside of the United States pursuant to 8 U.S.C. § 1104.

In June 2019, Mrs. Sabra applied in person at the U.S. Embassy in Jerusalem (the "Embassy") for a Consular Report of Birth Abroad ("CRBA") and U.S. passport as proof of Baby M's U.S. citizenship, citing a need for urgent medical treatment in the United States. Mrs. Sabra did not provide any travel plans for Baby M's urgent medical care, and Baby M did not attend the in-person interview because she was hospitalized. Because Mrs. Sabra failed to provide written medical records to substantiate Baby M's medical condition, the Embassy did not excuse Baby M's personal appearance. Given Mrs. Sabra's "advanced age," the Embassy requested documentary evidence establishing that Mrs. Sabra was Baby M's mother. Due to the indicia of fraud and inconsistencies in the submissions, the Embassy extended the deadline for the submission of additional evidence to establish Baby M's claim to U.S. citizenship. Litigation ensued. After Baby M's health became stable, Mr. and Mrs. Sabra declined the Embassy's offer to apply in person with Baby M for the CRBA and U.S. passport. In October 2019, the Embassy denied Mrs. Sabra's applications.

Seeking declaratory, mandamus, and injunctive relief (Counts I-III), Mr. Sabra claims that the supporting documentation establishes Baby M's entitlement to U.S. citizenship. With respect to his request for a declaratory judgment (Count I), Mr. Sabra contends that the Embassy's failure to issue the CRBA and U.S. passport constitutes a violation of Baby M's fundamental rights to citizenship and travel under the Due Process Clause of the Fifth Amendment to the United States Constitution. Mr. Sabra asserts an alternative claim under the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. § 2000bb et seq. , claiming that the Embassy's request for DNA testing and photographs showing Mrs. Sabra pregnant with Baby M interferes with Mr. and Mrs. Sabra's sincerely held religious beliefs (Count IV). Construing Mr. Sabra's challenge to the Embassy's actions as one under the Administrative Procedures Act ("APA"), 5 U.S.C. § 701 et seq. , the Secretary argues that Mr. Sabra must seek relief pursuant to the statutory scheme in 8 U.S.C. § 1503.

Pending before the Court are the parties' cross-motions for summary judgment. Upon careful consideration of the parties' submissions, the applicable law, and the entire record herein, the Court concludes that: (1) Mr. Sabra has failed to provide satisfactory proof of birth, identity, and citizenship for the issuance of Baby M's CRBA and U.S. passport; and (2) the Secretary has failed to demonstrate that the Embassy's request for DNA testing and photographs showing Mrs. Sabra pregnant furthers a compelling governmental interest by the least restrictive means under RFRA. Therefore, the Court DENIES Mr. Sabra's Motion for Summary Judgment as to Counts I-III, GRANTS the Secretary's Motion for Summary Judgment as to Counts I-III, and DENIES the Secretary's Motion for Summary Judgment as to Count IV.

II. Background

The Court assumes the parties' familiarity with the factual and procedural background in this case. The Court begins with the statutory and regulatory framework and then summarizes the relevant background. Unless otherwise indicated, the material facts—drawn from the parties' submissions—are not in dispute. See, e.g. , Def.'s Statement of Material Facts ("Def.'s SOMF"), ECF No. 18-2 at 1-6; Pl.'s Counter-Statement of Material Facts ("Pl.'s SOMF"), ECF No. 21-2 at 1-11; Pl.'s Reply to Def.'s Counterstatement to Pl.'s SOMF, ECF No. 23-1 at 1-8.²

A. Statutory and Regulatory Framework

The Immigration and Nationality Act of 1952 ("INA") sets forth the general rules for acquiring U.S. citizenship. Sessions v. Morales-Santana , ––– U.S. ––––, 137 S. Ct. 1678, 1686, 198 L.Ed.2d 150 (2017) (citing INA, Pub. L. No. 82-414, § 301(a)(3), 66 Stat. 163, 235-36, codified as amended, 8 U.S.C. § 1401 ). Section 1401(c), the subsection relevant here, provides that a person "shall" be a national and citizen of the United States at birth if the person is "born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person." 8 U.S.C. § 1401(c) ; see also 8 U.S.C. § 1101(a)(33) (defining "residence" as "the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent").

1. Determinations of U.S. Citizenship

The Secretary is "charged with the administration and the enforcement of ... immigration and nationality laws relating to ... the determination of nationality of a person not in the United States." 8 U.S.C. § 1104 ; see also 22 C.F.R. § 50.1(d) (defining "national" as "a citizen of the United States or a noncitizen owing permanent allegiance to the United States"). Two official documents provide proof of U.S. citizenship: (1) a passport issued by the Secretary; and (2) a CRBA issued by the State Department's consular officer. 22 U.S.C. § 2705. And "the Secretary may issue ... CRBAs ... to U.S. citizens born abroad ‘[u]pon application and the submission of satisfactory proof of birth, identity and nationality.’ " Chacoty v. Pompeo , 392 F. Supp. 3d 1, 3 (2019) (quoting 22 C.F.R. § 50.7(a) ).

The Secretary has the authority "to cancel any [U.S.] passport ... if it appears that such document was illegally, fraudulently, or erroneously obtained from, or was created through illegality or fraud practiced upon, the Secretary." 22 U.S.C. § 211a. "The issuance or cancelation of a CRBA ... ‘affect[s] only the document and not the citizenship status of the person.’ " Chacoty , 392 F. Supp. 3d at 3 (quoting 8 U.S.C. § 1504(a) ). "That is because CRBAs, like passports, do not confer citizenship; rather, they merely provide proof of one's status as a citizen." Id.

The State Department "shall" determine claims of U.S. citizenship "when made by persons abroad on the basis of an application for registration, for a passport, or for a [CRBA]." 22 C.F.R. § 50.2. Determinations of U.S. citizenship may be made abroad by a consular officer or a designated nationality examiner. Id. "A [CRBA] may only be issued by a consular officer, who will review a designated nationality examiner's provisional approval of an application for such report and issue the report if satisfied that the claim to nationality has been established." Id. An applicant for a CRBA "shall be required to submit proof of the child's birth, identity and citizenship meeting the evidence requirements" for passports. 22 C.F.R. § 50.5 (referencing 22 C.F.R. ch. I, subch. F, pt. 51, subpt. C).

2. The Documentary Evidence

Under the applicable regulations, the applicant bears the burden of proof that he or she is a U.S. citizen, 22 C.F.R. § 51.40, and "[t]he applicant must provide documentary evidence that he or she is a U.S. citizen or non-citizen national," id. § 51.41. For a person born in the United States applying for a passport for the first time, a birth certificate serves as primary evidence, and "[t]he birth certificate must show the full name of the applicant, the applicant's place and date of birth, the full name of the parent(s), and must be signed by the official custodian of birth records, bear the seal of the issuing office, and show a filing date within one year of the date of birth." Id. § 51.42(a). "Secondary evidence includes but is not limited to hospital birth certificates, baptismal certificates, medical and school records, certificates of circumcision, other documentary evidence created shortly after birth but generally not more than 5 years after birth, and/or affidavits of persons having personal knowledge of the facts of the birth." Id. § 51.42(b).

For first-time passport applicants born outside the United States, the person "must submit documentary evidence," which includes a CRBA, certificate of naturalization, and certificate of citizenship. Id. § 51.43(a)-(b). "An applicant without one of these documents must produce supporting documents as required by the [State] Department, showing acquisition of U.S. citizenship under the relevant provisions of law." Id. § 51.43(b)(2).

For CRBA applicants, "[p]roof of [the] child's birth usually consists of, but is not limited to," the following documents: (1) "an authentic copy of the record of the birth filed with...