Ahmed Ali Muthana v. Michael Pompeo ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 15, 2020 Decided January 19, 2021
No. 19-5362
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
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00445)
Christina A. Jump argued the cause for appellant. With her
on the briefs was Charles D. Swift.
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.
2
John C. Eastman and Anthony T. Caso 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 for the Court filed by Circuit Judge RAO.
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.
3
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
1
The United States accords diplomats stationed at U.N. missions the
same privileges and immunities as diplomats stationed at embassies
and consulates. See Agreement Between the U.S. and U.N.
Respecting the Headquarters of the U.N., June 26, 1947, 61 Stat.
3416; Convention on Privileges and Immunities of the U.N., Feb. 13,
1946, 21 U.S.T. 1418. The State Department certified that Muthana
possessed “diplomatic agent level immunity.” J.A. 18.
2
As the precise date of Hoda’s birth is immaterial to the legal
questions, we omit it here in order to protect her privacy.
4
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.
5
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
6
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.
7
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
next friend standing on behalf of minors and incompetents, or
to seek a writ of habeas corpus. See Whitmore v. Arkansas, 495
U.S. 149, 163 n.4 & 164 (1990) (“Indeed, if there were no
restriction on ‘next friend’ standing in federal courts, the
litigant asserting only a generalized interest in constitutional
governance could circumvent the jurisdictional limits of
Art. III simply by assuming the mantle of ‘next friend.’”).
Hoda does not fit within any of the established exceptions. At
age twenty, she is not a minor, and Muthana has not asserted
that she is incompetent. See FED. R. CIV. P. 17(c). Nor does
Muthana petition for a writ of habeas corpus on Hoda’s behalf.
We need not decide whether Muthana may proceed as
next friend to Hoda, however, because Muthana may
proceed as next friend to his grandson.3 Federal Rule of Civil
3
The district court held there was next friend standing for Hoda and
John Doe by relying on Ali Jaber v. United States, which held that
next friend standing may be invoked whenever a “plaintiff[] can
sufficiently demonstrate its necessity,” and therefore that next friend
standing does not require statutory authorization. 155 F. Supp. 3d 70,
76 (D.D.C. 2016). We are not aware of any Supreme Court or circuit
precedent that extends next friend standing beyond the exceptions
8
Procedure 17 allows a next friend to sue on behalf of a minor.
Next friend standing on behalf of minors is a long-recognized
exception to the rule that a litigant can claim injury only to his
personal interests. See Whitmore, 495 U.S. at 163 n.4. This
exception recognizes that a minor “must be represented by a
competent adult” to pursue his claims in court. T.W. by Enk v.
Brophy, 124 F.3d 893, 895 (7th Cir. 1997); see also Whitmore,
495 U.S. at 165 (explaining the “ancient tradition” of next
friend standing requires that “the real party in interest is unable
to litigate his own cause due to mental incapacity, lack of
access to court, or other similar disability”). Muthana thus may
proceed on behalf of his grandson if he qualifies as his next
friend. He does.
To determine whether a person may proceed as next friend
to a minor, we examine the relationship between the proposed
next friend and minor. See T.W. by Enk, 124 F.3d at 897; cf.
Whitmore, 495 U.S. at 163–64 (explaining that, to obtain a writ
of habeas corpus as a next friend, the next friend “must be truly
dedicated to the best interests of the person on whose behalf he
seeks to litigate” and suggesting that a significant relationship
is required). Not every person who is interested in serving as a
minor’s next friend qualifies for that role. There must
ordinarily be a significant relationship between the proposed
next friend and minor, see T.W. by Enk, 124 F.3d at 897, though
codified by Congress. Ali Jaber misconstrues the Supreme Court’s
decision in Whitmore, which identified serious Article III concerns
with expanding next friend standing and simply reserved the
question of whether next friend standing could be sustained absent
statutory authorization. Whitmore, 495 U.S. at 164. Moreover, we
note that a decision of our district court “do[es] not establish the law
of the circuit, nor, indeed, do[es it] even establish the law of the
district.” In re Executive Office of President, 215 F.3d 20, 24 (D.C.
Cir. 2000) (cleaned up).
9
that requirement may not rigidly apply when a minor has no
significant relationships, see Sam M. ex rel. Elliott v. Carcieri,
608 F.3d 77, 91 (1st Cir. 2010).
Muthana easily qualifies as next friend to his grandson. A
minor’s parent or close relative is a natural fit to serve as his
next friend in most cases. The government argued below that,
as his mother, Hoda was the appropriate next friend for John
Doe. But when a minor’s parent is “unable, unwilling or
refuses to act” as next friend to the minor, another person may
proceed as next friend. See Ad Hoc Comm. of Concerned
Teachers v. Greenburgh No. 11 Union Free Sch. Dist., 873
F.2d 25, 30 (2d Cir. 1989). Hoda is unable to proceed as John
Doe’s next friend because she is inaccessible in a Kurdish
camp in Syria and unable to return to the United States.
Muthana is a close relative of John Doe who is able and willing
to litigate his claims. Because Muthana has a significant
relationship to his grandson, he may proceed as John Doe’s
next friend.
Once a court determines that a party has standing to
proceed as next friend, it must determine if the real party in
interest possesses standing in his own right. Here, the alleged
deprivation of American citizenship without due process of law
is a judicially cognizable injury in fact. See U.S. CONST .
amend. XIV, § 1; see also Kennedy v. Mendoza-Martinez, 372
U.S. 144, 159 (1963) (“Citizenship … is expressly guaranteed
by the Fourteenth Amendment to the Constitution, which
speaks in the most positive terms.”). Accepting Muthana’s
allegations as true, the U.S. government denied John Doe his
U.S. citizenship without due process. See Lujan v. Defs. of
Wildlife, 504 U.S. 555, 561 (1992) (explaining that we take a
plaintiff’s affidavits and other factual evidence as true when
determining standing at the summary judgment stage). This
injury is actual and personal to John Doe, fairly traceable to the
10
government’s conduct, and redressable through a declaratory
judgment settling his citizenship. See id. at 560–61. Because
John Doe would have standing to bring his citizenship claim,
Muthana can pursue this claim as his grandson’s next friend.
The district court had jurisdiction to determine John Doe’s
citizenship, a question that necessarily required a
determination of his mother’s citizenship. Under the
Immigration and Nationality Act, a person born outside the
United States to one citizen-parent is a citizen as long as his
citizen-parent lived in the United States for five years, and was
at least fourteen years old for two of those years. 8 U.S.C.
§ 1401(g).4 The only alleged basis for John Doe’s citizenship
is the citizenship of his mother. Therefore, it is impossible to
disaggregate the question of John Doe’s citizenship from that
of his mother’s. Although Muthana cannot proceed as next
friend to Hoda, the district court was required to determine
Hoda’s citizenship as a necessary incident of its jurisdiction to
determine John Doe’s citizenship.
We review de novo a district court’s grant of summary
judgment and dismissal of a claim for lack of subject matter
jurisdiction. Waggel v. George Washington Univ., 957 F.3d
4
As relevant here, 8 U.S.C. § 1401 provides:
The following shall be nationals and citizens of the
United States at birth: … (g) a person born outside
the geographical limits of the United States and its
outlying possessions of parents one of whom is an
alien, and the other a citizen of the United States
who, prior to the birth of such person, was
physically present in the United States or its
outlying possessions for a period or periods totaling
not less than five years, at least two of which were
after attaining the age of fourteen years[.]
11
1364, 1371 (D.C. Cir. 2020) (summary judgment); Ctr. for Law
& Educ. v. Dep’t of Educ., 396 F.3d 1152, 1156 (D.C. Cir.
2005) (lack of jurisdiction). Summary judgment should be
granted if “there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” FED .
R. CIV . P. 56(a).
III.
Although Muthana’s claims focus on the revocation of
citizenship for Hoda and John Doe, this case requires us to first
ascertain whether Hoda and John Doe were United States
citizens. That question turns on whether Muthana possessed
diplomatic immunity when Hoda was born. Under the
Fourteenth Amendment, “[a]ll persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are
citizens of the United States.” U.S. CONST. amend. XIV, § 1.
A child born on U.S. soil to a foreign diplomat possessing
diplomatic immunity is not eligible for citizenship by birth
because she is not born “subject to the jurisdiction” of the
United States. See United States v. Wong Kim Ark, 169 U.S.
649, 693 (1898); Nikoi v. Att’y Gen., 939 F.2d 1065, 1066
(D.C. Cir. 1991) (“The jurisdiction clause was intended to
exclude from its operation children of ministers of foreign
States born within the United States.”) (cleaned up). We agree
with the district court that because Muthana enjoyed
diplomatic immunity at the time of Hoda’s birth, she did not
become a citizen at birth and therefore John Doe did not
acquire citizenship because he was born abroad to non-citizen
parents.
The argument proceeds as follows. First, under the Vienna
Convention, diplomatic immunity continues until notification
of a diplomat’s termination to the host country. Muthana’s
arguments to the contrary cannot be squared with the plain
12
meaning of the Convention and longstanding diplomatic
practice. Second, in this case the State Department certified to
the district court that it was notified of Muthana’s termination
on February 6, 1995. Under our precedents, such certification
provides conclusive evidence that Muthana enjoyed diplomatic
immunity at the time of Hoda’s birth in October 1994, and
therefore that Hoda did not become a U.S. citizen at birth.
Finally, we cannot grant Muthana equitable relief because
courts have no power to confer citizenship where it otherwise
does not exist under the laws of the United States.
A.
Diplomatic immunity is governed by the Vienna
Convention on Diplomatic Relations. See 23 U.S.T. 3227.
When interpreting treaties, “we are guided by principles
similar to those governing statutory interpretation.” Iceland
S.S. Co., Ltd.-Eimskip v. Dep’t of Army, 201 F.3d 451, 458
(D.C. Cir. 2000). Muthana argues that the Convention allows
diplomatic immunity to cease on the date of his termination
from his diplomatic post, which was prior to Hoda’s birth.
Because he lost diplomatic immunity before his daughter’s
birth, Muthana maintains that Hoda is a birthright citizen. The
government argues that the Convention requires diplomatic
immunity to continue until a reasonable period after
notification of termination to the host country. Because the
State Department was not notified of Muthana’s termination
until after Hoda’s birth, she is not a citizen by virtue of her birth
in the United States. “[T]he meaning attributed to treaty
provisions by the Government agencies charged with their
negotiation and enforcement is entitled to great weight.” Starr
Int’l Co. v. United States, 910 F.3d 527, 537 (D.C. Cir. 2018)
(quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176,
184–85 (1982)).
13
Here, the State Department’s interpretation comports with
the plain meaning of the Convention that diplomatic immunity
ceases when the host country is notified of the termination.
Article 43 of the Convention states in full:
The function of a diplomatic agent comes to an
end, inter alia: (a) on notification by the sending
State to the receiving State that the function of
the diplomatic agent has come to an end; (b) on
notification by the receiving State to the
sending State that, in accordance with
paragraph 2 of Article 9, it refuses to recognize
the diplomatic agent as a member of the
mission.
23 U.S.T. 3227, art. 43. Article 39 of the Convention connects
the end of diplomatic functions with diplomatic immunity,
providing that “[w]hen the functions of a person enjoying
privileges and immunities have come to an end, such privileges
and immunities shall normally cease” when the diplomat
leaves the country or after a “reasonable period in which to do
so, but shall subsist until that time.” Id. at art. 39. The text of
the Convention plainly provides that a diplomat’s functions
end upon “notification” to the receiving state and that
diplomatic immunities continue from the date of notification
for a “reasonable period” or until the diplomat leaves the
country.
This notification condition comports with longstanding
principles of international law and state practice, which
allowed diplomatic immunity to continue for a reasonable
period after diplomatic service ended and thereby protected
diplomats by giving them some breathing room to leave the
country or to make other arrangements without exposure to the
jurisdiction of the host country. See, e.g., Emer de Vattel, THE
14
LAW OF NATIONS bk. IV, ch. IX § 125 (B. Kapossy & R.
Whatmore eds., 2008) (“[W]hen he is obliged to depart on any
account whatever, his functions cease: but his privileges and
rights do not immediately expire. … His safety, his
independence, and his inviolability, are not less necessary to
the success of the embassy in his return, than at his coming.”).
The notification standard ensures that decisions regarding the
status of diplomats generally turns on the determinations of the
sending state.5 Luke T. Lee, CONSULAR LAW AND PRACTICE
95 (2d ed. 1991) (explaining that the notification standard
respects state sovereignty by preventing “the receiving State
[from] investigating the internal administration of the foreign
consular organization in order to determine what status the
[diplomatic or consular officer] holds”); cf. Vattel, THE LAW
OF NATIONS bk. IV, ch. IX § 78 (noting a sovereign’s exclusive
control over its diplomatic missions abroad). Thus, under the
plain meaning of the Convention, reinforced by historical
practice, diplomatic immunity continues at least until the host
country is notified of a diplomat’s termination.6
5
A receiving state can end the functions of a diplomat by following
the requirements of Article 43(b), which requires notice to the
sending state and then the provision of a “reasonable period” of
continued immunity under Article 39.
6
The parallel evolution of consular immunity also bolsters the
interpretation of termination and notification as distinct standards for
governing the cessation of diplomatic functions. Before 1963, an
individual possessing consular immunity, as opposed to full
diplomatic immunity, generally lost such immunity immediately
upon termination, rather than notification. The Vienna Convention
on Consular Relations, however, ended “[t]he differential treatment
accorded to consuls,” Lee, CONSULAR LAW AND PRACTICE 112, and
replaced the termination standard with the notification standard,
Vienna Convention on Consular Relations, Apr. 24, 1963,
21 U.S.T. 77, art. 25(a). This history buttresses the conclusion that
15
To support his interpretation, Muthana asserts that the
term “inter alia” in Article 43 demonstrates that diplomatic
immunity can cease either on the date the receiving state is
notified of termination or the date of actual termination.
Muthana argues that “inter alia” is a term of illustration, not of
exclusion, so although notification is an example of when
diplomatic immunity may cease, it is not the only standard.
According to Muthana, Article 43 does not foreclose
an interpretation that diplomatic immunity ends as of the
date of termination.7 He reasons that, because termination is a
possible standard, the State Department’s decisions in 2005
and 2014 to issue a passport to Hoda were exercises of the
Department’s “discretion” to determine that Muthana did not
have diplomatic immunity at the time of Hoda’s birth.
Muthana’s arguments, however, cannot be squared with
the text, structure, purpose, and history of the Convention. As
notification and termination are distinct periods for marking the end
of diplomatic immunity.
7
Muthana’s reliance on Raya v. Clinton, 703 F. Supp. 2d 569, 578
(W.D. Va. 2010), is misplaced because that case concerned a
termination that occurred after notification. In Raya, Egypt notified
the United States in advance that a diplomat’s functions would
terminate in a few days. This notification meant that the diplomat’s
immunity would continue until he left the country or the expiry of a
reasonable period in which to do so. Id.; see also 23 U.S.T. 3227,
arts. 39 & 43. Because notification occurred before termination, the
termination date informed how long the diplomat’s immunity would
subsist for the “reasonable period” for him to leave the country. See
Raya, 703 F. Supp. 2d at 578. Here Muthana was terminated before
the United States was notified of his termination and the relevant
legal question in this case is about the date of notification of
termination, not about the length of a “reasonable period” for
continued immunity after notification.
16
already discussed, the plain meaning of the Convention
provides for a diplomat’s functions to continue until
notification of termination to the receiving state. The
Convention’s use of “inter alia” in Article 43 refers to other
established circumstances that might end diplomatic functions,
such as the death of a diplomat, the extinction of the sending
or receiving state, a regime change, severance of diplomatic
relations, and war. See, e.g., 23 U.S.T. 3227, art. 39(3) (death
of a diplomat), art. 45 (war and severance of diplomatic
relations). Thus, “‘inter alia’, as used in the Vienna
Convention indicate[s] also the existence of other conditions.
All of these are now described.” Lee, CONSULAR LAW AND
PRACTICE 94. What “inter alia” does not include is allowing
diplomatic immunity to turn on termination, a condition
nowhere specified in the Convention and inconsistent with
longstanding diplomatic practice.
Muthana’s reading of coexisting termination and
notification standards also runs afoul of one of the purposes of
the Convention, namely to provide certainty and clarity in
diplomatic relations. If either termination or notification of
termination could govern the end of a diplomat’s functions,
diplomats could not be certain of the continuation of their
immunity and host countries would not be certain of the status
of lingering diplomats. See id. at 93 (explaining that
international crises have arisen due to disagreement and
confusion over when diplomatic immunity terminates). The
Convention seeks to establish uniform standards for the
diplomatic intercourse between nations in order to promote
predictability and reciprocity. See id. (highlighting the
importance of a “[c]lear statement of the condition under which
the consular status of an individual terminates”) (citation and
quotation marks omitted); see also 23 U.S.T. 3227 pmbl.
(explaining the Vienna Convention was created to ensure there
is “an international convention on diplomatic intercourse” to
17
“contribute to the development of friendly relations among
nations, irrespective of their differing constitutional and social
systems”). As the government stresses here, the Convention
“serves to protect United States diplomats abroad, which is a
critical national interest of the United States.” Gov’t Br. 6. An
interpretation that renders the standard governing the end of
diplomatic immunity uncertain would provide less protection
to diplomats and the nations they represent and could
undermine reciprocal treatment of American diplomats abroad.
Finally, although the State Department has some
discretion over questions of diplomatic immunity even within
the terms of the Convention,8 the government does not suggest
that such discretion was exercised here to deny Muthana
diplomatic immunity before notification of his termination and
thereby to recognize Hoda’s citizenship by birth. To the
contrary, the government maintains that at the time of Hoda’s
birth, Muthana continued to enjoy diplomatic privileges and
immunities. In addition to its certification, the government
presented several contemporaneous records corroborating that
Muthana had diplomatic status after Hoda’s birth. For example,
it presented a file from the U.N. Office of Protocol reflecting
that Muthana’s diplomatic status continued until February 6,
1995. S.A. 109. The government maintains that the issuance of
a passport to Hoda in 2005 and 2014 was in error. It would
seem far afield of the judicial role to convert a government
error into an exercise of executive discretion in the sensitive
8
For example, the Diplomatic Relations Act vests the President with
the authority to “specify [diplomatic privileges] … which result in
more favorable treatment or less favorable treatment than is provided
under the Vienna Convention,” and he may do so “on the basis of
reciprocity and under such terms and conditions as he may
determine.” 22 U.S.C. § 254c(a).
18
arena of diplomatic relations.
Consistent with historical practice, the Vienna Convention
explicitly recognizes that diplomatic functions continue until
notification of termination to the host country and that
immunity is maintained for some “reasonable period” after
such notification. We therefore hold that Muthana’s diplomatic
immunity continued at least until the United States was notified
of his termination by Yemen.
B.
Whether Hoda and John Doe are citizens depends on
whether Muthana enjoyed diplomatic immunity at the time of
Hoda’s birth. Under the Vienna Convention, the question turns
on one dispositive fact: when was the United States notified
that Muthana was no longer a diplomat? The State Department
certified to the district court that the United States received
notice of Muthana’s termination on February 6, 1995. The
district court accepted this certification as conclusive proof that
Muthana had diplomatic immunity when his daughter was born
in October 1994. Muthana attempts to rebut this conclusion by
relying on a document obtained when applying for Hoda’s
passport. That letter states Muthana was “notified to the United
States Mission” as a diplomat from October 15, 1990, to
September 1, 1994. In light of more than a century of binding
precedent that places the State Department’s formal
certification of diplomatic status beyond judicial scrutiny, we
conclude the certification is conclusive and dispositive
evidence as to the timing of Muthana’s diplomatic immunity.
With no dispute of material fact, summary judgment for the
government was appropriate.
The Constitution vests the President with the sole power
to “receive Ambassadors and other public Ministers.”
19
U.S. CONST. art. II, § 1 (“The executive Power shall be vested
in a President of the United States of America.”), § 3 (“[H]e
shall receive Ambassadors and other public Ministers.”). The
Reception Clause recognizes the President’s authority to
determine the status of diplomats, a fact long confirmed by all
three branches. See, e.g., Crimes Act of 1790 ch. IX § 25, 1
Stat. 112, 117–18; Presidential Power to Expel Diplomatic
Personnel from the United States, 4A Op. O.L.C. 207, 208–09
(Apr. 4, 1980); In re Baiz, 135 U.S. 403, 432 (1890). Just as
the President is vested with the “exclusive” power to recognize
foreign governments, Zivotofsky ex rel. Zivotofsky v. Kerry,
576 U.S. 1, 17 (2015), his “action in … receiving … diplomatic
representatives is conclusive on all domestic courts,” Guar. Tr.
Co. of N.Y. v. United States, 304 U.S. 126, 138 (1938).
Recognizing the vesting of these diplomatic powers with
the President, courts have afforded conclusive weight to the
Executive’s determination of an individual’s diplomatic status.
See In re Baiz, 135 U.S. at 432 (Courts may not “sit in
judgment upon the decision of the executive in reference to the
public character of a person claiming to be a foreign
minister.”). Justice Bushrod Washington, riding circuit,
explained why the Constitution compels this rule:
The constitution of the United States having
vested in the president the power to receive
ambassadors and other public ministers, has
necessarily bestowed upon that branch of the
government, not only the right, but the
exclusive right, to judge of the credentials of the
ministers so received; and so long as they
continue to be recognized and treated by the
president as ministers, the other branches of the
government are bound to consider them as such.
20
United States v. Ortega, 27 F. Cas. 359, 361 (C.C.E.D. Pa.
1825) (Washington, J.). This understanding has survived to the
present day. See Carrera v. Carrera, 174 F.2d 496, 497–98
(D.C. Cir. 1949); Zdravkovich v. Consul Gen. of Yugoslavia,
1998 WL 389086, at *1 (D.C. Cir. June 23, 1998) (“The courts
are required to accept the State Department’s determination
that a foreign official possesses diplomatic immunity from
suit.”).9
In litigation implicating the status of diplomats, the courts
and the Executive have developed a practice in which the
Executive submits a certification of a diplomat’s status to the
court. For example, in Carrera, we explained that the
Executive’s certification of immunity is entitled to conclusive
weight when it is “transmitted to the district judge” by the State
Department: “It is enough that an ambassador has requested
immunity, that the State Department has recognized that the
person for whom it was requested is entitled to it, and that the
Department’s recognition has been communicated to the
court.” 174 F.2d at 497. We noted that this was the process that
was “approved by the Supreme Court in In re Baiz.” Id.; see
also United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir.
2004); Abdulaziz v. Met. Dade County, 741 F.2d 1328, 1330–
31 (11th Cir. 1984); 4A Op. O.L.C. at 208–09. In this case, the
State Department has submitted under this longstanding
process a formal certification that the United States was
notified of Muthana’s termination from his diplomatic position
9
This view is also uniformly maintained by our sister circuits. See,
e.g., United States v. Al-Hamdi, 356 F.3d 564, 568, 573 (4th Cir.
2004); Abdulaziz v. Met. Dade County, 741 F.2d 1328, 1331 (11th
Cir. 1984); United States v. Lumumba, 741 F.2d 12, 15 (2d Cir. 1984)
(“[R]ecognition by the executive branch—not to be second-guessed
by the judiciary—is essential to establishing diplomatic status.”).
21
on February 6, 1995.
In response, Muthana argues that the certification is not
conclusive as to the dates of immunity because the district
court was required to weigh the additional evidence he
submitted, which he claims at least creates a dispute of material
fact sufficient to prevent summary judgment. Specifically,
Muthana attached a 2004 letter from Russell Graham (the
“Graham Letter”), in which the United States Mission to the
United Nations informed the Bureau of Citizenship and
Immigration Services that Muthana was “notified to the United
States Mission” as a diplomat from October 15, 1990, to
September 1, 1994. Muthana argues that the district court
should have given more weight to the Graham Letter than the
State Department’s certification, which was produced twenty
years after Hoda’s birth and after this lawsuit was filed.
Because the Graham Letter was dated from before Hoda
received her passport, Muthana suggests the Letter
demonstrates that the State Department understood he was not
in a diplomatic role when Hoda was born.
Even on its own terms, however, the Graham Letter
creates no dispute over the relevant legal fact of when the
United States was notified of Muthana’s termination. The
Graham Letter notes only two dates: Muthana’s date of
appointment as a diplomat, October 15, 1990, and his date of
termination, September 1, 1994. The Graham Letter merely
addresses the duration of Muthana’s diplomatic position and
when it was terminated. The Graham Letter says nothing about
when the United States was notified of Muthana’s termination
and therefore when his diplomatic immunity ended.
In any event, we must accept the State Department’s
formal certification to the Judiciary as conclusive proof of the
dates of diplomatic immunity. See, e.g., Carrera, 174 F.2d at
22
497. The Executive’s determination cannot be attacked by
“argumentative or collateral proof.” See In re Baiz, 135 U.S. at
432. When a diplomat has been recognized by the Executive,
“the evidence of those facts is not only sufficient, but in our
opinion, conclusive upon the subject of his privileges as a
minister.” Ortega, 27 F. Cas. at 362. See also Carrera, 174
F.2d at 498 (“[T]he Secretary having certified Carrera’s name
as included in the list, judicial inquiry into the propriety of its
listing was not appropriate.”); Al-Hamdi, 356 F.3d at 573(explaining that the State Department’s certification “is
conclusive evidence as to [] diplomatic status”). The State
Department made a formal certification in this case, and it
cannot be undermined by collateral evidence such as the
Graham Letter, a document of unknown provenance that
Muthana attached to his complaint.
By accepting the certification as conclusive, we decline to
second-guess the Executive’s recognition of diplomatic status.
If courts could rely upon extrinsic evidence submitted by
private parties to impeach the credibility of the Executive’s
formal certification, the certification would not be conclusive,
and the courts rather than the Executive would have the
final say with respect to recognizing a diplomat’s immunity. 10
See United States v. Pink, 315 U.S. 203, 230 (1942) (“We
10
Contrary to the concurring opinion, the State Department argued
that its certification was “conclusive” and “dispositive.” Gov’t Br.
30–31. When discussing the effect of the Graham Letter at oral
argument, the State Department argued that, “under Baiz,” its
certification “ha[s] a special status here.” Oral Arg. Tr. 25:3–4; see
also Oral Arg. Tr. 17:1–3. Indeed, the Department advanced in its
brief the argument the court adopts today: “Under established law
that has been consistent for over a century, when the Department of
State certifies the diplomatic status of an individual, the courts are
bound to accept that determination.” Gov’t Br. 25 (citation and
quotation marks omitted).
23
would usurp the executive function if we held that that [the
recognition] decision was not final and conclusive in the
courts.”). The district court properly held that the State
Department’s certification is conclusive proof of the dates of
Muthana’s immunity and declined Muthana’s request to look
behind the certification or to order discovery.
Under the Vienna Convention, immunity continues at least
until notification of termination, and the State Department here
certified to the district court that notification of Muthana’s
termination occurred on February 6, 1995. Thus, Muthana
possessed diplomatic immunity when his daughter was born in
October 1994. As a consequence, Hoda Muthana was not born
“subject to the jurisdiction” of the United States and is not a
citizen by birth under the Fourteenth Amendment. See Nikoi,
939 F.2d at 1066. This also means that John Doe did not
acquire citizenship based on parentage under 8 U.S.C.
§ 1401(g), since neither of his parents was a U.S. citizen when
he was born.
C.
Muthana also seeks equitable relief. He maintains that the
government should be equitably estopped from “stripping”
Hoda of her U.S. citizenship. He contends the State
Department previously determined that Muthana’s diplomatic
post terminated prior to Hoda’s birth when it issued her a
passport in 2005, recognizing her right to citizenship by birth.11
11
Muthana sensibly does not rest his argument solely on the State
Department’s issuance and subsequent revocation of Hoda’s
passport. As Muthana acknowledges, a passport “does not confer
citizenship upon its recipient.” Hizam v. Kerry, 747 F.3d 102, 109
(2d Cir. 2014). The Secretary of State is authorized to “cancel any
United States passport … if it appears that such document
was … erroneously obtained from … the Secretary,” 8 U.S.C.
24
Muthana also highlights the unfairness created by the State
Department’s issuance and subsequent revocation of Hoda’s
passport. He explains that, had he known Hoda was not born a
U.S. citizen, he would have pursued the naturalization process
for her, as he did for himself, his wife, and their other children.
Although Muthana may have had a good faith
understanding that his daughter acquired citizenship at birth,
an error initially shared by the State Department, the law
affords Muthana no relief. As we have explained, Hoda has
never been a U.S. citizen and therefore the State Department
revoked her passport, but could not strip her of a citizenship
she never lawfully enjoyed. Even if the State Department
previously recognized Hoda as a citizen as Muthana contends,
the Executive can only recognize lawful citizenship, and Hoda
did not acquire citizenship at birth because her parents had
diplomatic immunity. We cannot now order the State
Department to recognize Hoda’s citizenship, because she is not
a citizen under the Constitution or laws of the United States.
The Executive has no authority to confer citizenship on Hoda
outside of the naturalization rules created by Congress.12
§ 1504(a), and the State Department cancelled Hoda’s passport in
2016. Thus, the State Department’s issuance, renewal, and
revocation of Hoda’s passport cannot settle her claim to citizenship.
12
The Constitution vests the exclusive power “[t]o establish an
uniform Rule of Naturalization” in Congress. U.S. CONST. art. I, § 8;
Chirac v. Chirac’s Lessee, 15 U.S. 259, 269 (1817) (Marshall, C.J.)
(“[T]he power of naturalization is exclusively in congress.”). The
Executive cannot unilaterally confer citizenship. Congress may,
however, grant citizenship through private bills, which are generally
reserved for “cases that are of such an extraordinary nature that an
exception to the law is needed.” H.R. COMM. ON THE JUDICIARY,
SUBCOMM. ON IMMIGR. & CITIZENSHIP, 116TH CONG., RULES OF
25
Nor do the courts have an equitable power to grant
citizenship. “Neither by application of the doctrine of estoppel,
nor by invocation of equitable powers, nor by any other means
does a court have the power to confer citizenship in violation
of these limitations.” INS v. Pangilinan, 486 U.S. 875, 885
(1988); Fedorenko v. United States, 449 U.S. 490, 506 (1981)
(“Congress alone has the constitutional authority to prescribe
rules for naturalization.”) (citing U.S. CONST. art. I, § 8).
Having held that Hoda is not a citizen under the Fourteenth
Amendment and her son is not a citizen under 8 U.S.C.
§ 1401(g), we cannot confer citizenship through equity.
***
For the foregoing reasons, we affirm the district court’s
conclusion that Hoda Muthana and her son are not, and never
have been, citizens of the United States.
IV.
Having held that Hoda and her son are not citizens, the
district court properly denied Muthana’s mandamus petition.
Rather than grant the government summary judgment on this
count, however, the district court should have dismissed
Muthana’s mandamus claims for lack of subject matter
jurisdiction. Under 28 U.S.C. § 1361, “[a] court may grant
mandamus relief only if: (1) the plaintiff has a clear right to
relief; (2) the defendant has a clear duty to act; and (3) there is
no other adequate remedy available to plaintiff.” Baptist Mem’l
Hosp. v. Sebelius, 603 F.3d 57, 62 (D.C. Cir. 2010) (cleaned
up). “These three threshold requirements are jurisdictional;
unless all are met, a court must dismiss the case for lack of
PROC. & STATEMENT OF POL’Y FOR PRIV. IMMIGR. BILLS, at 3
(2019).
26
jurisdiction.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189
(D.C. Cir. 2016). Thus, “mandamus jurisdiction under § 1361
merges with the merits.” Lovitky v. Trump, 949 F.3d 753, 759
(D.C. Cir. 2020) (citation and quotation marks omitted).
Muthana sought a writ of mandamus obligating the United
States to use all available means to return his daughter and
grandson to the United States. To do so, he asked the court to
“order the government to affect her return to the United States,
including but not limited to the use of military or other
government aircraft.” Pl.’s Mem. in Support 21, Muthana v.
Pompeo, No. 1:19-cv-00445-RBW (D.D.C. Mar. 1, 2019),
ECF No. 15. Not even citizens have a clear right to assistance
from the U.S. government in coming to U.S. territory, so aliens
certainly have none. Accordingly, Hoda and her son lack any
right to this relief. We therefore remand this claim and direct
the district court to dismiss Muthana’s mandamus petition for
lack of subject matter jurisdiction.
V.
Finally, the district court correctly dismissed for lack of
standing Muthana’s claim for a declaratory judgment that he
would not violate the prohibition on providing material support
for terrorism if he sent money and supplies to his daughter and
grandson. See 18 U.S.C. § 2339B. In pursuing this claim,
Muthana proceeded in his personal capacity rather than as next
friend to his daughter and grandson. The district court held that
he lacked standing because he failed to identify a personal
constitutional right that would be affected by the enforcement
of the statutory prohibition on providing material support for
terrorism. We agree.
To establish standing for a preenforcement challenge, a
plaintiff must demonstrate first “an intention to engage in a
27
course of conduct arguably affected with a constitutional
interest, but proscribed by a statute” and, second, that “there
exists a credible threat of prosecution thereunder.” Susan B.
Anthony List v. Driehaus, 573 U.S. 149, 159 (2014) (citation
and quotation marks omitted). Muthana’s claim fails under the
first requirement because he did not allege that the material
support statute was unconstitutional as applied to his intended
conduct. Instead, he argued that he would not violate the statute
by sending support to Hoda because she was no longer engaged
in terrorist activity.
Preenforcement review is not a vehicle to settle questions
of statutory interpretation unconnected with matters of
constitutional right. Instead, preenforcement review is limited
and appropriate only to relieve a plaintiff from the necessity of
“first expos[ing] himself to actual arrest or prosecution” before
he can “challenge [the] statute that he claims deters the exercise
of his constitutional rights.” Steffel v. Thompson, 415 U.S. 452,
459 (1974). The district court properly rejected Muthana’s
standing to seek review of the applicability of the
material support statute absent a claim of constitutional right.13
Accordingly, we affirm the dismissal of this count for lack of
subject matter jurisdiction.
***
Muthana focuses his lawsuit on the hardship resulting
13
For the first time on appeal, Muthana argues that the material
support statute unconstitutionally burdens his right to free
association. Because it is “not the province of an appellate court to
hypothesize or speculate about the existence of an injury Plaintiff did
not assert to the district court,” we decline to consider this new theory
of standing on appeal. Huron v. Cobert, 809 F.3d 1274, 1280 (D.C.
Cir. 2016) (cleaned up).
28
from the revocation of his daughter’s passport and the State
Department “stripping away” her citizenship. Yet Hoda was
not born a United States citizen because her father possessed
diplomatic immunity when she was born and therefore she was
not born subject to the jurisdiction of the United States. See
U.S. CONST . amend. XIV, § 1. Hoda’s son, who was born
abroad to two non-citizen parents, could not have acquired
citizenship. See 8 U.S.C. § 1401(g). Therefore, we affirm in
part the grant of summary judgment to the government because
neither Hoda Muthana nor John Doe have ever been citizens of
the United States. We also affirm the district court’s dismissal
for lack of jurisdiction of Muthana’s claim for preenforcement
review of the material support for terrorism statute. Because
the district court lacked jurisdiction over Muthana’s petition
for a writ of mandamus, it must be dismissed on remand.
So ordered.
TATEL, Circuit Judge, concurring in the judgment:
Although this case touches on a critical provision of the
Fourteenth Amendment—the “Jurisdiction Clause”—it could
have been resolved on the most routine of grounds. Both parties
agree that this dispute turns on when the United States Mission
received “notification” of Ahmed Ali Muthana’s termination
from his role as a diplomat with the Yemeni Mission to the
United Nations. If the United States Mission received that
notification before Muthana’s daughter’s birth in October
1994, she is a citizen of the United States; otherwise, she is not.
The record contains two documents purporting to speak to
Muthana’s diplomatic tenure: a 2004 letter from Russell
Graham stating that Muthana was “notified to the United States
Mission” as a diplomat from October 15, 1990, to September
1, 1994, and a 2019 letter from James Donovan stating that
Muthana and his family possessed diplomatic immunity until
February 6, 1995. But as even this court agrees, Majority Op.
at 21–22, nothing in the Graham letter contradicts the Donovan
letter’s statement that the United States received notification of
Muthana’s termination on February 6, 1995. We therefore
could have easily resolved this case on the ground that there is
no genuine issue of material fact as to the date of notification,
just as the government argued in the district court, just as Judge
Walton concluded, and just as the government urges here.
Indeed, we could have done so by judgment.
Yet the court reaches out to affirm on the basis of an
argument not raised by the government and not surfaced by the
court at oral argument: that we must ignore the Graham letter
entirely and look to the contents of the Donovan letter alone
because that is the document the executive branch “formally”
transmitted to the court in the course of litigation. Such a
holding is not only unnecessary, but wrong.
The court begins its analysis with “a century of binding
precedent that places the State Department’s formal
2
certification of diplomatic status beyond judicial scrutiny.”
Majority Op. at 19. So far so good. Over a century ago, the
Supreme Court announced in In re Baiz, 135 U.S. 403 (1890),
that because “we do not assume to sit in judgment upon the
decision of the executive in reference to the public character of
a person claiming to be a foreign minister,” “the certificate of
the Secretary of State . . . is the best evidence to prove the
diplomatic character of a person.” Id. at 432, 421 (emphasis
added). Were the Donovan letter the only State Department
certification in the record, that uncontroversial statement of law
would make this an even easier case.
The problem, of course, is that the record contains not one
but two documents purporting to be certifications. Both the
Graham and Donovan documents appear on the letterhead of
the United States Mission, carry the United States seal, and
bear the signature of the Minister Counselor for Host Country
Affairs. Both, moreover, contain the same opening words:
“This is to certify that . . . .” Joint Appendix 12, 18 (emphasis
added). Based on only the four corners of the two documents,
both would appear to qualify as the “best evidence to prove the
diplomatic character of a person.”
The court sidesteps the problem of dueling certifications
by describing the Donovan document as a “formal certification
to the Judiciary” submitted to the court pursuant to a
“longstanding process.” Majority Op. at 21–22. But the court
never explains why the Donovan document, and not the
Graham document, is “formal” despite both bearing the same
indicia of institutional legitimacy. Nor does the court point to
any evidence, record or otherwise, that a longstanding formal
procedure for communicating the Executive’s view of
diplomatic status to the court exists. Instead, it simply assumes
that the way such information reached the court in a handful of
prior cases reflects a longstanding formal procedure. But those
3
decisions describe only the facts before the court in each, not
any formal procedure.
Without saying so outright, the court appears to adopt a
novel rule: that the term “certification” somehow refers only to
a “formal certification to the Judiciary” submitted by the
Executive in connection with litigation. Majority Op. at 22.
That rule suffers from two major flaws.
First, the government nowhere advances the court’s
theory—not in its brief and not at oral argument. See
Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983) (“The
premise of our adversarial system is that appellate courts do not
sit as self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued
by the parties before them.”). To be sure, as my colleagues
observe, Majority Op. at 22 n.10, the government does contend
that the Donovan letter was “conclusive” and “dispositive.”
Appellees’ Br. 30–31. But the government does not contend
that the Donovan letter was the sole “certification,” and thus
“dispositive,” by virtue of the Executive submitting it to the
court during this case. The court nonetheless claims to divine
such an argument from the government’s statement that “when
the Department of State certifies the diplomatic status of an
individual, the courts are bound to accept that determination.”
Majority Op. at 22 n.10. That statement, however, says nothing
about what makes one document and not another a
“certification”—the critical question here—and certainly says
nothing to suggest that submission during the course of
litigation is dispositive. The government simply declares that
the Donovan letter “ends the factual inquiry into Plaintiff’s
diplomatic status at the time of [his daughter’s] birth,”
Appellees’ Br. 25–26, before going on to argue that the Graham
letter “failed to . . . refute th[e] date” contained in the Donovan
document, id. at 31. I think it especially unwise to adopt a rule
4
that turns on government submission of a document when the
government itself advances no such rule.
Second, no case supports the court’s new rule. Although
the court seeks to house its theory in In re Baiz, 135 U.S. 403(1890), and Carrera v. Carrera, 174 F.2d 496 (D.C. Cir. 1949),
neither case speaks to how a court differentiates between two
seemingly authentic State Department documents. To be sure,
the Court held in In re Baiz that “the certificate of the Secretary
of State . . . is the best evidence to prove the diplomatic
character of a person.” 135 U.S. at 421 (emphasis added). But
in that case, the Court rejected the petitioner’s claim to
immunity because there was no certification at all, so the
question of submission was not before the Court. And in
Carrera, the plaintiff challenged the only purported
certification on the ground that it was submitted ex parte and
therefore “not properly presented to the District Court.” 174
F.2d at 497. Rejecting that argument, our court held that “the
process by which the claim of immunity . . . was communicated
to the court” was proper. Id. Carrera, in other words, suggests
that a court can consider a State Department certification
(which, per In re Baiz, is the “best evidence” of diplomatic
status) no matter how that certification makes its way to the
district court. Nothing in either opinion suggests that
submission by the government during litigation somehow
elevates one authentic State Department document over
another; the issue was just not before either court.
Nor do decisions citing In re Baiz and Carrera address the
issue of dueling documents. In Abdulaziz v. Metropolitan Dade
County, 741 F.2d 1328 (11th Cir. 1984), for example, the
Eleventh Circuit relied on a State Department certification and
rejected the argument that it should conduct an independent
inquiry into whether the individual fell outside the protections
of the Vienna Convention, or “was apparently eligible for, but
5
had not been granted diplomatic status at the time he initiated
[suit].” Id. at 1331. In United States v. Al-Hamdi, 356 F.3d 564(4th Cir. 2004), the Fourth Circuit likewise concluded that,
having been presented with a “State Department[] certification
. . . based on a reasonable interpretation of the Vienna
Convention,” the court would “not review the State
Department’s factual determination that, at the time of his
arrest, Al-Hamdi fell outside of the immunities of the Vienna
Convention.” Id. at 571, 573. Neither case addressed the
question we face here: what to do when there are two state
department documents purporting to address diplomatic status.
Of course, our review is limited in this sensitive arena.
Article II of the Constitution gives the President the power to
“receive Ambassadors and other public Ministers,” which is
precisely why the Supreme Court crafted the “best evidence”
rule in In re Baiz: to prevent the judiciary from “sit[ting] in
judgment upon the decision of the executive in reference to the
public character of a person claiming to be a foreign minister.”
135 U.S. at 432. Nothing in the Constitution or case law,
however, requires that we credit the Executive’s litigating
position to the exclusion of all other Executive evidence, no
matter how authoritative.
Under the court’s new rule, had Muthana produced a
document identical to Donovan’s letter in every way except for
stating “this is to certify that the United States Mission received
notification not in February 1995, but in July 1994,” it would
have been improper to even consider that evidence. The case
law does not require such a result, the government does not
seek it, and we can straightforwardly resolve this case on the
same ground Judge Walton did—that “the Graham certification
. . . speak[s] to the date of [Muthana’s] termination . . . , not the
date when the United States Mission was notified of [his]
6
termination.” Muthana v. Pompeo, No. 19-cv-00445, slip op.
at 21 (D.D.C. Dec. 17, 2019).