United States v. Al-Hamdi ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4452
IBRAHIM AHMED AL-HAMDI,
Defendant-Appellant.

UNITED STATES OF AMERICA, 
Plaintiff-Appellee,
v.  No. 03-4655
IBRAHIM AHMED AL-HAMDI,
Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
James C. Cacheris, Senior District Judge.
(CR-03-158-A)
Argued: December 5, 2003
Decided: January 23, 2004
Before WILLIAMS, KING, and DUNCAN, Circuit Judges.
Affirmed by published opinion. Judge Williams wrote the opinion, in
which Judge King and Judge Duncan joined.
2 UNITED STATES v. AL-HAMDI
COUNSEL
ARGUED: Salim Ali, BECKER, HADEED, KELLOGG & BERRY,
P.C., Springfield, Virginia, for Appellant. David Howard Laufman,
Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee. ON
BRIEF: Paul J. McNulty, United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION
WILLIAMS, Circuit Judge:
In this appeal, Ibrahim Al-Hamdi, a citizen of the Republic of
Yemen, contests his prosecution and conviction for violating 18
U.S.C.A. § 922(g)(5)(B) (West 2000), which prohibits possession of
a firearm by a non-immigrant alien. Al-Hamdi’s principal argument
is that, as the family member of a diplomat, he possessed diplomatic
immunity at the time of his arrest and that the State Department later
tried to revoke that immunity retroactively, in violation of the Vienna
Convention on Diplomatic Relations and the United States Constitu-
tion. Finding that the State Department’s interpretation of who is a
"member[ ] of the family of a diplomatic agent forming part of his
household" (member of the family) for purposes of the Vienna Con-
vention is reasonable, we accept its certification as conclusive evi-
dence that Al-Hamdi, at the time of his arrest, was not a "member of
the family" and hold that Al-Hamdi did not have diplomatic immu-
nity. We also hold that the State Department’s actions in this matter
did not violate the constitutional guarantee of due process.
I.
On February 25, 2003, officers from the Federal Bureau of Investi-
gation (FBI) and the Immigration and Naturalization Services (INS),1
1
Although we follow the parties’ usage of INS, we recognize that
effective March 1, 2003, the INS changed its name to the Bureau of Citi-
zenship and Immigration Services. (BCIS)
UNITED STATES v. AL-HAMDI 3
executed a search warrant at the Annandale, Virginia apartment of
Ibrahim Al-Hamdi. Upon entering the residence, one of the occupants
told the officers that Al-Hamdi kept a rifle in the apartment. Soon
thereafter, the agents discovered a loaded .308 caliber rifle with a
telescopic site in Al-Hamdi’s closet. Al-Hamdi was subsequently
indicted by a federal grand jury on April 17, 2003, for possession of
a firearm by a non-immigrant alien, in violation of 18 U.S.C.A.
§ 922(g)(5)(B).
Based on the belief that he was immune from prosecution, see
Vienna Convention on Diplomatic Relations, April 18, 1961, art.
37.1, 23 U.S.T. 3227 (hereinafter "Vienna Convention") (stating that
members of a diplomat’s family also have diplomatic immunity), Al-
Hamdi filed a motion to dismiss the indictment on May 12, 2003, in
the United States District Court for the Eastern District of Virginia.
After an oral hearing, the district court denied the motion by an order
dated May 16, 2003, and Al-Hamdi filed an interlocutory notice of
appeal on May 27, 2003. On June 5, 2003, Al-Hamdi pleaded guilty
to the firearms charge but reserved his right to appeal on the ground
of diplomatic immunity. The district court sentenced Al-Hamdi to
eighteen months imprisonment and three years of supervised release
on August 1, 2003. Al Hamdi filed a second timely notice of appeal
on August 15, which was consolidated with the first notice of appeal.2
Al-Hamdi was born in Yemen on November 12, 1977, but moved
to the United States in 1993 when his father, Ahmed Ali Saleh Al-
Hamdi, was appointed as a Minister at the Republic of Yemen’s
embassy in Washington, D.C. The Government agrees that in 1993
Al-Hamdi and his father possessed diplomatic immunity pursuant to
the Vienna Convention. Al-Hamdi celebrated his twenty-first birthday
in November 1998. He was not enrolled in school at the time, and his
diplomatic identification card, given to all persons with diplomatic
immunity, expired on December 12, 1998. The Yemeni embassy
applied for a new identification card for Al-Hamdi on December 1,
2
Because Al-Hamdi entered into a plea agreement before action was
taken on his first appeal, the first appeal was consolidated with his sec-
ond appeal. We thus have jurisdiction because the second appeal is from
a final order, the conviction and sentencing. 28 U.S.C.A. § 1291 (West
1993).
4 UNITED STATES v. AL-HAMDI
1999, but the State Department requested more information before it
would grant the request. No further information was provided, and
Al-Hamdi was never issued a new identification card. Al-Hamdi,
however, continued to be issued A-1 visas3 after 1999 and has entered
the United States with an A-1 visa on numerous occasions since 1999.
On March 31, 2003, the State Department sent a letter to the
Yemeni embassy stating that Al-Hamdi’s father lost his diplomatic
immunity on that date because he no longer performed full-time ser-
vices for Yemen at the embassy. On May 15, 2003, in response to Al-
Hamdi’s motion to dismiss the indictment, the State Department certi-
fied that Al-Hamdi lost his diplomatic immunity on November 12,
1998, the date of his twenty-first birthday. Thus, according to the May
15 certification, Al-Hamdi did not possess diplomatic immunity at the
time of his arrest.
II.
On appeal, Al-Hamdi’s principal argument is that he possessed dip-
lomatic immunity at the time of his arrest on February 25, 2003, and
was thus immune from prosecution. He also contends that the State
Department’s May 15, 2003, certification retroactively revoked that
immunity, in violation of his substantive and procedural due process
rights as guaranteed by the Fifth Amendment of the Constitution.4 We
address each of these arguments in turn.
3
A-1 visas are given to non-immigrants who are defined under the
immigration laws as having A-1 status. Those non-immigrants include
"an ambassador, public minister, or career diplomatic or consular officer
who has been accredited by a foreign government, recognized de jure by
the United States and who is accepted by the President or by the Secre-
tary of State, and the members of the alien’s immediate family." 8
U.S.C.A. § 1101(a)(15)(A)(i) (West Supp. 2003).
4
Al-Hamdi also contends the alleged retroactive revocation violated
the Administrative Procedures Act, 5 U.S.C.A. §§ 551-559 (West 1996
& Supp. 2003) (APA), and the Ex Post Facto clause of the Constitution.
Al-Hamdi did not raise these arguments below, and "[i]t is an accepted
rule of appellate procedure that ordinarily an appellate court will not con-
sider an issue not raised in the court from which the appeal is taken."
United States v. Davis, 954 F.2d 182, 187 (4th Cir. 1992) (quotation
UNITED STATES v. AL-HAMDI 5
The determination of whether a person has diplomatic immunity is
a mixed question of fact and law. We review such questions "under
a hybrid standard, applying to the factual portion of each inquiry the
same standard applied to questions of pure fact and examining de
novo the legal conclusions derived from those facts." Gilbaine Bldg.
Co. v. Fed. Reserve Bank of Richmond, 80 F.3d 895, 905 (4th Cir.
1996); see also United States v. Han, 74 F.3d 537, 540 n. 1 (4th Cir.
1996) (explaining the application of the hybrid standard). Interpreta-
tion of an international treaty is an issue of law subject to de novo
review. Tabion v. Mufti, 73 F.3d 535, 537 (4th Cir. 1996).
A.
In pertinent part, the Vienna Convention states that a "diplomatic
agent shall enjoy immunity from the criminal jurisdiction of the
receiving State." Vienna Convention at art. 31.1. Article 37.1 reads
"members of the family of a diplomatic agent forming part of his
household shall . . . enjoy the privileges and immunities specified in
Articles 29 to 36." Vienna Convention at art 37.1. The Diplomatic
Relations Act, which made the Vienna Convention applicable to the
United States, see Tabion, 73 F.3d at 536 n.1, provides that the phrase
"members of the family" means the "members of the family of a
member of a mission . . . who form part of his or her household." 22
U.S.C.A. § 254a(2)(A) (West 1990). That Act also provides, quite
clearly, that "[a]ny action or proceeding brought against an individual
who is entitled to immunity with respect to such action or proceeding
. . . shall be dismissed." 22 U.S.C.A. § 254d (West 1990). Thus, under
the plain language of the statute, if, at the time he was arrested, Al-
Hamdi was entitled to diplomatic immunity under Article 37.1 of the
Vienna Convention, the criminal proceedings against him must be
dismissed.
marks omitted). When "fundamental rights are involved," this rule may
be relaxed to prevent "manifest injustice." Davis, 954 F.2d at 187.
Because Al-Hamdi did raise his due process claims below, and because
the due process claims address the same State Department action, no
manifest injustice would result from failing to consider Al-Hamdi’s APA
and Ex Post Facto claims.
6 UNITED STATES v. AL-HAMDI
In its May 15, 2003 letter, the State Department certified that Al-
Hamdi lost his diplomatic immunity in November 1998. The State
Department based its certification on a Circular Diplomatic Note5 that
it issued in 1989. United States Department of State, Circular Diplo-
matic Note of November 15, 1989. (S.A. at 3.) That Circular Note
articulated the State Department’s position that the phrase "members
of the family," as set forth in the Vienna Convention and the Diplo-
matic Relations Act, did not include children over the age of twenty-
one. (S.A. at 5.) The 1989 Circular Note provided, however, that chil-
dren of certified diplomats still enrolled in school are considered fam-
ily members until their twenty-third birthday. Id. (S.A. at 5). The
1989 Circular Note was provided to all foreign missions and remains
in force, but because the Republic of Yemen was not formed until
1990, it did not receive the Circular Note during 1989.
In 1998, the State Department published guidelines for administra-
tive officers that restated the age limitations on children who are con-
sidered members of the diplomatic family as had been originally
stated in the 1989 Circular Note and explained that "it is generally
agreed that host States may formulate reasonable definitions" of the
phrases used in the Vienna Convention. United States Department of
State, Foreign Diplomatic and Career Consular Personnel in the
United States - Guidance for Administrative Officers (1998).6 (S.A. at
25-28.) The State Department provided that publication to all foreign
embassies in the United States, including the Yemeni embassy.
5
Diplomatic Notes are used for correspondence between the State
Department and foreign governments. See United States Department of
State, 5 Foreign Affairs Manual 212h; United States Department of State,
5 Foreign Affairs Handbook 1 H-611(a). A Circular Diplomatic Note is
an identical note sent to multiple foreign governments or missions.
United States Department of State, 5 Foreign Affairs Handbook 1 H-
612.2-7.
6
The Foreign Affairs Manual does not define the term "Guidance,"
however, it does define "Guidebooks" such as "guidelines, internal pro-
cedures, etc." as State Department publications that summarize entries in
the Foreign Affairs Manual or relate to isolated issues and have no regu-
latory force. United States Department of State, 2 Foreign Affairs Man-
ual 1115.5-2. Because the term "Guidance" is not defined elsewhere, we
assume that a Guidance falls within that definition.
UNITED STATES v. AL-HAMDI 7
The Government forcefully argues that the State Department’s cer-
tification of Al-Hamdi’s lack of immunity is conclusive and thus judi-
cially unreviewable. The Government concedes, however, that the
State Department cannot act outside the Vienna Convention in issuing
a certification and also admits that in this case the State Department’s
certification is based upon its own interpretation of the Vienna Con-
vention, not the plain language of that document. Thus, we believe we
first must ensure that the State Department’s certification was not
based on an impermissible interpretation of the Vienna Convention.
Then, we will examine the evidentiary effect of the State Depart-
ment’s certification made pursuant to that interpretation.
When interpreting a treaty, we "first look to its terms to determine
its meaning." United States v. Alvarez-Machain, 504 U.S. 655, 663
(1992). When the text is ambiguous or unclear, we turn to nontextual
sources for guidance. See United States v. Li, 206 F.3d 56, 63 (1st Cir.
2000) (en banc); Tabion v. Mufti, 73 F.3d 535, 537-538 (4th Cir.
1996). When looking at nontextual sources, we are reminded that
"[a]lthough not conclusive, the meaning attributed to treaty provisions
by the Government agencies charged with their negotiation and
enforcement is entitled to great weight." Sumitomo Shoji America,
Inc. v. Avagliano, 457 U.S. 176, 184-185 (1982); see also Iceland
Steamship Co. v. United States Dep’t of the Army, 201 F.3d 451, 458
(D.C. Cir. 2000) (giving "great weight" to the State Department’s
interpretation of a U.S.-Iceland defense treaty). Therefore, because
the State Department is charged with the responsibility of enforcing
the Vienna Convention, we give "[s]ubstantial deference" to the State
Department’s interpretation of that treaty’s provisions. Tabion, 73
F.3d at 538;7 see also Li, 206 F.3d at 63.
The phrase "members of the family of a diplomatic agent forming
7
For example, in Tabion v. Mufti, 73 F.3d 535 (4th Cir. 1996), we
faced the issue of whether employing a domestic servant is the sort of
"commercial activity" outside the scope of the immunities listed in the
Vienna Convention. After noting that "[n]owhere in the Vienna Conven-
tion is the term ‘commercial activity’ defined," we relied upon the State
Department’s narrow interpretation of the phrase in holding that the
employment of a domestic servant was not a "commercial activity."
Tabion, 73 F.3d at 537-539.
8 UNITED STATES v. AL-HAMDI
part of his household" is not free from ambiguity, as seen by the dif-
fering interpretations offered by both Al-Hamdi and the Government.
As mentioned, the State Department, since 1989, has consistently
interpreted the "member of the family" provision of Article 37.1 to
include only children under the age of twenty-one as forming part of
the household unless they are continuing their education. Al-Hamdi
argues that diplomatic immunity extends to all "members of the fam-
ily" and contends that the Vienna Convention does not allow for an
age restriction.8 At its core, Al-Hamdi’s argument asks us to find that
his interpretation of the Vienna Convention’s language is more rea-
sonable than the State Department’s interpretation. We give "substan-
tial deference" to the State Department’s interpretation of a treaty, and
in the context of diplomatic immunity, the receiving state always has
had "broad discretion to classify diplomats." Abdulaziz v. Metropoli-
tan Dade County, 741 F.2d 1328, 1331 (11th Cir. 1984). Moreover,
and perhaps most important, Al-Hamdi has failed to show how the
State Department’s interpretation violates the dictates of the Vienna
Convention or infringes upon the Convention’s purpose of "ensur-
[ing] the efficient performance of the functions of diplomatic mis-
sions as representing States." Preamble of the Vienna Convention.
Although Al-Hamdi’s interpretation is not unreasonable, given the
substantial deference we owe the State Department and the lack of
any showing that the State Department’s interpretation either
infringes on the purpose of the Vienna Convention or is disconsonant
with its plain language, we hold that the phrase "member of the fam-
ily" can reasonably be interpreted to exclude children who have
reached twenty-one years of age and children still in school who have
reached the age of twenty-three. See also Iceland Steamship, 201 F.3d
8
In his reply brief, Al-Hamdi argued, for the first time, that he satisfied
the Vienna Convention’s only limitation, that the individual "form[s] part
of [the diplomat’s] household." (Appellant’s Reply Br. at 4, 6.) Al-
Hamdi alleges that he was part of his father’s household because his
father continued to support him financially, paying the rent for Al-
Hamdi’s apartment and remaining the apartment’s lessee. (Appellant’s
Reply Br. at 6.) It is a well settled rule that contentions not raised in the
argument section of the opening brief are abandoned. Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999). Moreover, the ques-
tion of whether Al-Hamdi can prove that he was part of his father’s
household is not relevant to the inquiry of whether the State Depart-
ment’s interpretation of "members of the family" is reasonable.
UNITED STATES v. AL-HAMDI 9
at 458 (holding that where State Department has "wide latitude" in
interpreting a treaty, a court should "defer to [the agency’s] reason-
able interpretation") (quotation marks omitted).
B.
Having concluded that the State Department’s certification was
based on a reasonable interpretation of the Vienna Convention, we
address the issue of its evidentiary weight. The Government, as dis-
cussed above, argues that such certifications are conclusive on the
matter of diplomatic immunity. For support, the Government relies
upon two Supreme Court cases from the nineteenth century and more
recent circuit court precedent. In In re Baiz, the Supreme Court relied
upon a State Department certification in finding that an individual
was not a foreign minister. In re Baiz, 135 U.S. 403 (1890). The Court
stated that because Article II of the Constitution gave the executive
branch the power to send and receive ambassadors, "the certificate of
the [S]ecretary of [S]tate . . . is the best evidence to prove the diplo-
matic character of a person accredited as a minister." Id. at 421. The
Court concluded, "we do not assume to sit in judgment upon the deci-
sion of the executive in reference to the public character of a person
claiming to be a foreign minister." Id. at 432. Six years prior, in Ex
Parte Hitz, 111 U.S. 766 (1884), the Supreme Court denied a writ
requesting original jurisdiction in the Supreme Court. At that time, the
Supreme Court possessed original, mandatory jurisdiction over all
cases involving ambassadors, but the Court relied upon the State
Department’s finding that Hitz was no longer an accredited diplomat
to conclude that the writ was discretionary with the Court and denied
the writ. Ex Parte Hitz, 111 U.S. at 768.
In cases of more recent vintage, circuit courts have continued to
find the State Department’s certification conclusive. See, e.g., Carr-
era v. Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949) (noting "[it] is
enough that an ambassador has requested immunity, that the State
Department has recognized that the person . . . is entitled to it, and
that the Department’s recognition has been communicated to the
court"); Abdulaziz, 741 F.2d at 1331 (finding "courts have generally
accepted as conclusive the views of the State Department as to the
fact of diplomatic status"). In fact, it appears that no reviewing court
10 UNITED STATES v. AL-HAMDI
has ever held that the State Department’s certification is anything but
conclusive.
The only authority that remotely counsels against judicial accep-
tance of State Department findings in the context of diplomatic immu-
nity is Gutierrez de Martinez v. Lamagno, 515 U.S. 417 (1995). In
Lamagno, the Supreme Court held that certifications made by the
Attorney General under the Westfall Act, 28 U.S.C.A. § 2679(d)(1)
(West 1994), were subject to judicial review. The Westfall Act pro-
vides "[u]pon certification by the Attorney General . . . any civil
action . . . shall be deemed an action against the United States." 28
U.S.C.A. § 2679(d)(1). The Court held that "[b]ecause the statute is
reasonably susceptible to divergent interpretation, we adopt the read-
ing that accords with traditional understandings and basic principles:
that executive determinations generally are subject to judicial
review." Lamagno, 515 U.S. at 434. We do not find Lamagno control-
ling or persuasive here. Unlike the Westfall Act, the traditional view
in cases involving diplomatic immunity and the Article II power to
send and receive ambassadors is not one of judicial review. Instead,
the traditional view in these cases, as stated in Ex Parte Hitz and In
re Baiz, is one of judicial acceptance of the certifications of the State
Department. Moreover, the Lamagno Court was concerned with the
Attorney General’s incentive to grant certification when the United
States was immune from suit, thereby shielding a federal employee
from liability while not exposing the United States to liability.
Lamagno, 515 U.S. at 427-428.9 The State Department has no similar
9
Lamagno concerned the Attorney General’s scope-of-employment
certification. Lamagno, 515 U.S. at 420. When a federal employee is
sued for negligence, the Attorney General can certify that the employee
was acting within the scope of his employment. Id. Upon certification,
the United States is substituted as a defendant. Normally, a certification
benefits the plaintiff because his claim proceeds against the financially
secure United States under the Federal Tort Claims Act (FTCA). Id.
Under the facts of Lamagno, however, certification left the plaintiff with-
out a tort action against any party because the incident occurred abroad
and the FTCA does not waive sovereign immunity for claims arising
abroad. Id. In considering the reviewability of the certification, the Court
was influenced by the "marked" "incentive . . . to certify" and recognized
that the "impetus to certify becomes overwhelming in cases like this
one." Id. at 424, 427. As discussed in the text infra, these incentives do
not exist in the diplomatic immunity context.
UNITED STATES v. AL-HAMDI 11
incentive to deny diplomatic immunity to deserving individuals and
thereby risk international disfavor. As the Supreme Court has stated,
"the certificate of the secretary of state . . . is the best evidence to
prove the diplomatic character of a person." In re Baiz, 135 U.S. at
421.
For the foregoing reasons, we hold that the State Department’s cer-
tification, which is based upon a reasonable interpretation of the
Vienna Convention, is conclusive evidence as to the diplomatic status
of an individual. Cf. United States v. Kostadinov, 734 F.2d 905 (2d
Cir. 1984) (determining first that individual was not automatically
covered by the Vienna Convention because of his employment in an
embassy building and then accepting the State Department’s determi-
nation as to whether the individual was a diplomatic agent). Thus, we
will 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 because he had passed his twenty-first birthday
and he was no longer in school. Lacking diplomatic immunity, Al-
Hamdi was subject to the criminal laws of the United States on Febru-
ary 25, 2003, when he was found in possession of a firearm.
C.
Al-Hamdi next argues that, even assuming the State Department
was correct that his diplomatic immunity should have expired in
1998, the State Department continued to issue him A-1 visas after
November 1998, and thus continued to certify his diplomatic status.
This argument is unavailing. A 1985 Circular Note stated that posses-
sion of an A-1 visa, standing alone, did not prove the diplomatic sta-
tus of an immigrant. United States Department of State, Circular Note
of October 23, 1985. (S.A. at 43-44.) Moreover, a 1998 publication
explained, "the only authoritative [diplomatic] identity document is
the identity card issued by the United States Department of State."
See United States Department of State, Diplomatic and Consular
Immunity - Guidance for Law Enforcement and Judicial Authorities
(1998) (the 1998 Guidance). (J.A. at 47.) An A-1 visa, the 1998 Guid-
ance explained, was merely a document that allowed non-immigrant
foreigners linked to diplomatic or humanitarian missions to enter the
United States. Id. (J.A. at 47.) We conclude that Al-Hamdi’s posses-
sion of an A-1 visa, standing alone, cannot confer diplomatic immu-
12 UNITED STATES v. AL-HAMDI
10
nity upon him. Unfortunately, Al-Hamdi’s evidence of diplomatic
immunity, his identification card, expired in 1998 and was never reis-
sued. Accordingly, the State Department’s issuance of an A-1 visa to
Al-Hamdi did not confer diplomatic status, and he was subject to the
criminal jurisdiction of the United States at the time of his arrest.
III.
Al-Hamdi also alleges that the State Department’s certification that
his diplomatic immunity had lapsed violated his Fifth Amendment11
right to due process.12 Here, Al-Hamdi argues that the State Depart-
ment, by certifying in May 2003 that he lost his diplomatic immunity
in November 1998, violated both his substantive and procedural due
process rights. Al-Hamdi argues first that the certification letter vio-
lated his substantive due process rights by retroactively revoking his
immunity. An executive act can violate substantive due process only
when the act shocks the conscience. County of Sacramento v. Lewis,
523 U.S. 833, 846 (1998). In such cases, "the issue of fatal arbitrari-
ness should be addressed as a threshold question." Hawkins v.
Freeman, 195 F.3d 732, 738 (4th Cir. 1999) (quotation marks omit-
ted). "If it does not meet that test, the claim fails on that account, with
no need to inquire into the nature of the asserted liberty interest." Id.
10
Our conclusion is buttressed by the findings of a sister circuit. In
United States v. Kostadinov, 734 F.2d 905 (2d Cir. 1984), the Second
Circuit held that "a visa does not necessarily confer diplomatic immu-
nity." Id. at 912. The court instead relied upon the fact that "Kostadinov
never received a diplomatic identity card." Id.
11
Al-Hamdi’s brief alleges that the State Department violated the Four-
teenth Amendment, but actions of the federal government are reviewed
under the Fifth Amendment. Regardless, the standards employed by the
Supreme Court in analyzing due process claims under the Fourteenth
Amendment apply with equal force to claims raised under the Fifth
Amendment. See generally Johnson v. Hugo’s Skateway, 949 F.2d 1338,
1349 n.4 (4th Cir. 1991).
12
Contrary to the Government’s argument, Al-Hamdi did preserve this
issue for appeal. During the oral hearing on the motion to dismiss the
indictment, Al-Hamdi’s counsel stated that the actions taken by the State
Department were "a clear violation of the defendant’s due-process rights,
both substantively and procedurally." (J.A. at 28.)
UNITED STATES v. AL-HAMDI 13
If an executive act does shock the conscience, then the "inquiry must
turn to the nature of the asserted interest, hence to the level of protec-
tion to which it is entitled." Id. Al-Hamdi’s claim must fail because,
assuming arguendo that a retroactive revocation of immunity would
shock the conscience, the State Department did not act retroactively.
Instead, the State Department merely certified that, pursuant to its
longstanding interpretation of the Vienna Convention, Al-Hamdi’s
immunity had expired in 1998.
Al-Hamdi also alleges that the State Department’s certification vio-
lated his procedural due process rights. Al-Hamdi’s argument is that,
even assuming the State Department’s certification was appropriate,
procedural due process required either a post-deprivation hearing or
notice regarding Al-Hamdi’s loss of immunity. The Fifth Amendment
provides that a person shall not "be deprived of life, liberty or prop-
erty, without due process of law." U.S. Const. amend. V. Given this
constitutional command, we pose two questions when reviewing a
claimed procedural due process violation: "[T]he first asks whether
there exists a liberty or property interest which has been interfered
with by the State, the second examines whether the procedures atten-
dant upon that deprivation were constitutionally sufficient." Kentucky
Dep’t of Corrections v. Thompson, 490 U.S. 454, 460 (1989) (cita-
tions omitted). While it is doubtful that Al-Hamdi possesses a liberty
or property interest in his diplomatic immunity,13 assuming arguendo
13
The Vienna Convention itself states that "the purpose of such privi-
leges and immunities is not to benefit individuals but to ensure the effi-
cient performance of the functions of diplomatic missions." Preamble to
the Vienna Convention. "[D]iplomatic immunity primarily serves the
needs of the foreign sovereign." United States v. County of Arlington,
669 F.2d 925, 930 (4th Cir. 1982). "The privilege extended to an individ-
ual diplomat is merely incidental to the benefit conferred on the govern-
ment he represents." Id.; see also The Exchange, 11 U.S. 116, 138 (1812)
(recognizing diplomatic immunity serves the interests of the foreign sov-
ereign because "without such exemption, every sovereign would hazard
his own dignity by employing a public minister abroad"); Abdulaziz v.
Metropolitan Dade County, 741 F.2d 1328, 1330 (11th Cir. 1984). "Even
where a treaty provides certain benefits for nationals of a particular state
. . . it is traditionally held that any rights arising from such provisions are,
under international law, those of the states and . . . individual rights are
14 UNITED STATES v. AL-HAMDI
that Al-Hamdi has a liberty or property interest in his diplomatic
immunity, we conclude, for the following reasons, that the procedures
provided by the State Department were constitutionally sufficient.
The Supreme Court requires courts to consider three factors when
determining if procedures are constitutionally sufficient: (1) the pri-
vate interest to be affected by the action; (2) the risk of erroneous
deprivation of that interest through the procedures that were used, and
the probable value of added procedures; and (3) the government’s
interest, including the fiscal and administrative burdens of added pro-
cedures. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Here, the
private interest is minimal given the fact that the Vienna Convention
is concerned with the rights of nations and not individuals. Further-
more, there is also minimal risk of erroneous deprivation because the
State Department is only determining whether a family member has
reached twenty-one years of age or is under twenty-three years of age
and furthering his education. Added procedures would not aid in
determining if a child of a diplomat falls within the State Depart-
ment’s interpretation of the phrase "members of the family." Most
important, the government has a strong interest in determining how
to implement the Vienna Convention effectively. See Abdulaziz, 741
F.2d at 1331. Due process does not require a post-deprivation hearing
in this setting.
only derivative through the states." Matta-Ballesteros v. Henman, 896
F.2d 255, 259 (7th Cir. 1990) (quotation marks omitted). In fact, no court
has ever held that the Vienna Convention creates individual rights.
Furthermore, courts looking at a similar treaty, The Vienna Conven-
tion on Consular Relations, April 24, 1963, 21 U.S.T. 77, have found it
doubtful that that treaty creates individual rights for violations of con-
sular notification provisions. Li, 206 F.3d at 66 (1st Cir. 2000) (stating
"it is far from clear that the Vienna Convention [on Consular Relations]
confers any rights upon criminal defendants") (citing Breard v. Greene,
523 U.S. 371, 377 (1998)). That treaty’s preamble, similar to the Vienna
Convention of Diplomatic Relations, provides that "the purpose of such
privileges and immunities is not to benefit individuals but to ensure the
efficient performance of functions by consular posts." Preamble to the
Vienna Convention on Consular Relations, April 24, 1963, 21 U.S.T. 77,
79. Thus, it is far from clear in this context that Al-Hamdi possessed a
liberty or property interest in diplomatic immunity.
UNITED STATES v. AL-HAMDI 15
Al-Hamdi also argues that the State Department should at least pro-
vide notice that an individual’s immunity has expired, but there is evi-
dence in this case that Al-Hamdi, or at least the Yemeni Embassy, had
notice in 1999 that Al-Hamdi’s immunity had expired. The Yemeni
Embassy requested a new identification card for Al-Hamdi in 1999,
but yet neglected to provide the additional information requested by
the State Department; consequently, a new card was never issued. Al-
Hamdi has also failed to point us to a regulation or statute requiring
the State Department to notify persons when their diplomatic status
expires. To the contrary, it seems only logical that the obligation to
remain aware of one’s diplomatic status falls upon the individual
wishing to avail himself of the immunity that accompanies diplomatic
status. Because the State Department’s procedures are constitutionally
sufficient, we hold that Al-Hamdi’s procedural due process rights
were not violated.
IV.
For the foregoing reasons, the judgment of the district court is
affirmed.
AFFIRMED.