Sabra v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
MOHAMMED SABRA, as next friend
of Baby M,
Plaintiff,
v. No. 19-cv-2090 (EGS)
MICHAEL POMPEO, in his REDACTED
official capacity as Secretary
of the United States
Department of State
Defendant.
MEMORANDUM OPINION
I. Introduction
Plaintiff Mohammed B. Sabra (“Mr. Sabra”), a naturalized
U.S. citizen and a California resident, brings this action as
next friend of “Baby M” 1 against Defendant Michael Pompeo, in his
official capacity as the Secretary of the United States
Department of State (the “Secretary”). Mr. Sabra claims that his
wife, Ponn M. Sabra (“Mrs. Sabra”), gave birth to their
daughter, Baby M, in Gaza. Mr. Sabra contends that Baby M became
a U.S. citizen at birth because both of her parents are U.S.
citizens. Under 8 U.S.C. § 1401(c), a child born abroad acquires
U.S. citizenship if both parents are U.S. citizens and one of
1 The Court shall refer to M.M.S., the minor in this case, as
Baby M. See Fed. R. Civ. P. 5.2(a)(3); see also LCvR 5.4(f)(2).
them has had a residence in the United States before the child’s
birth. Congress granted the Secretary the authority to determine
the citizenship of a person outside of the United States
pursuant to 8 U.S.C. § 1104.
In June 2019, Mrs. Sabra applied in person at the U.S.
Embassy in Jerusalem (the “Embassy”) for a Consular Report of
Birth Abroad (“CRBA”) and U.S. passport as proof of Baby M’s
U.S. citizenship, citing a need for urgent medical treatment in
the United States. Mrs. Sabra did not provide any travel plans
for Baby M’s urgent medical care, and Baby M did not attend the
in-person interview because she was hospitalized. Because Mrs.
Sabra failed to provide written medical records to substantiate
Baby M’s medical condition, the Embassy did not excuse Baby M’s
personal appearance. Given Mrs. Sabra’s “advanced age,” the
Embassy requested documentary evidence establishing that Mrs.
Sabra was Baby M’s mother. Due to the indicia of fraud and
inconsistencies in the submissions, the Embassy extended the
deadline for the submission of additional evidence to establish
Baby M’s claim to U.S. citizenship. Litigation ensued. After
Baby M’s health became stable, Mr. and Mrs. Sabra declined the
Embassy’s offer to apply in person with Baby M for the CRBA and
U.S. passport. In October 2019, the Embassy denied Mrs. Sabra’s
applications.
2
Seeking declaratory, mandamus, and injunctive relief
(Counts I-III), Mr. Sabra claims that the supporting
documentation establishes Baby M’s entitlement to U.S.
citizenship. With respect to his request for a declaratory
judgment (Count I), Mr. Sabra contends that the Embassy’s
failure to issue the CRBA and U.S. passport constitutes a
violation of Baby M’s fundamental rights to citizenship and
travel under the Due Process Clause of the Fifth Amendment to
the United States Constitution. Mr. Sabra asserts an alternative
claim under the Religious Freedom Restoration Act (“RFRA”),
42 U.S.C. § 2000bb et seq., claiming that the Embassy’s request
for DNA testing and photographs showing Mrs. Sabra pregnant with
Baby M interferes with Mr. and Mrs. Sabra’s sincerely held
religious beliefs (Count IV). Construing Mr. Sabra’s challenge
to the Embassy’s actions as one under the Administrative
Procedures Act (“APA”), 5 U.S.C. § 701 et seq., the Secretary
argues that Mr. Sabra must seek relief pursuant to the statutory
scheme in 8 U.S.C. § 1503.
Pending before the Court are the parties’ cross-motions for
summary judgment. Upon careful consideration of the parties’
submissions, the applicable law, and the entire record herein,
the Court concludes that: (1) Mr. Sabra has failed to provide
satisfactory proof of birth, identity, and citizenship for the
issuance of Baby M’s CRBA and U.S. passport; and (2) the
3
Secretary has failed to demonstrate that the Embassy’s request
for DNA testing and photographs showing Mrs. Sabra pregnant
furthers a compelling governmental interest by the least
restrictive means under RFRA. Therefore, the Court DENIES
Mr. Sabra’s Motion for Summary Judgment as to Counts I-III,
GRANTS the Secretary’s Motion for Summary Judgment as to Counts
I-III, and DENIES the Secretary’s Motion for Summary Judgment as
to Count IV.
II. Background
The Court assumes the parties’ familiarity with the factual
and procedural background in this case. The Court begins with
the statutory and regulatory framework and then summarizes the
relevant background. Unless otherwise indicated, the material
facts—drawn from the parties’ submissions—are not in dispute.
See, e.g., Def.’s Statement of Material Facts (“Def.’s SOMF”),
ECF No. 18-2 at 1-6; Pl.’s Counter-Statement of Material Facts
(“Pl.’s SOMF”), ECF No. 21-2 at 1-11; Pl.’s Reply to Def.’s
Counterstatement to Pl.’s SOMF, ECF No. 23-1 at 1-8. 2
A. Statutory and Regulatory Framework
The Immigration and Nationality Act of 1952 (“INA”) sets
forth the general rules for acquiring U.S. citizenship. Sessions
2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
4
v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017) (citing INA,
Pub. L. No. 82-414, § 301(a)(3), 66 Stat. 163, 235-36, codified
as amended, 8 U.S.C. § 1401). Section 1401(c), the subsection
relevant here, provides that a person “shall” be a national and
citizen of the United States at birth if the person is “born
outside of the United States and its outlying possessions of
parents both of whom are citizens of the United States and one
of whom has had a residence in the United States or one of its
outlying possessions, prior to the birth of such person.”
8 U.S.C. § 1401(c); see also 8 U.S.C. § 1101(a)(33) (defining
“residence” as “the place of general abode; the place of general
abode of a person means his principal, actual dwelling place in
fact, without regard to intent”).
1. Determinations of U.S. Citizenship
The Secretary is “charged with the administration and the
enforcement of . . . immigration and nationality laws relating
to . . . the determination of nationality of a person not in the
United States.” 8 U.S.C. § 1104; see also 22 C.F.R. § 50.1(d)
(defining “national” as “a citizen of the United States or a
noncitizen owing permanent allegiance to the United States”).
Two official documents provide proof of U.S. citizenship: (1) a
passport issued by the Secretary; and (2) a CRBA issued by the
State Department’s consular officer. 22 U.S.C. § 2705. And “the
Secretary may issue . . . CRBAs . . . to U.S. citizens born
5
abroad ‘[u]pon application and the submission of satisfactory
proof of birth, identity and nationality.’” Chacoty v. Pompeo,
392 F. Supp. 3d 1, 3 (2019) (quoting 22 C.F.R. § 50.7(a)).
The Secretary has the authority “to cancel any [U.S.]
passport . . . if it appears that such document was illegally,
fraudulently, or erroneously obtained from, or was created
through illegality or fraud practiced upon, the Secretary.”
22 U.S.C. § 211a. “The issuance or cancelation of a CRBA . . .
‘affect[s] only the document and not the citizenship status of
the person.’” Chacoty, 392 F. Supp. 3d at 3 (quoting 8 U.S.C.
§ 1504(a)). “That is because CRBAs, like passports, do not
confer citizenship; rather, they merely provide proof of one’s
status as a citizen.” Id.
The State Department “shall” determine claims of U.S.
citizenship “when made by persons abroad on the basis of an
application for registration, for a passport, or for a [CRBA].”
22 C.F.R. § 50.2. Determinations of U.S. citizenship may be made
abroad by a consular officer or a designated nationality
examiner. Id. “A [CRBA] may only be issued by a consular
officer, who will review a designated nationality examiner’s
provisional approval of an application for such report and issue
the report if satisfied that the claim to nationality has been
established.” Id. An applicant for a CRBA “shall be required to
submit proof of the child’s birth, identity and citizenship
6
meeting the evidence requirements” for passports. 22 C.F.R.
§ 50.5 (referencing 22 C.F.R. ch. I, subch. F, pt. 51, subpt.
C).
2. The Documentary Evidence
Under the applicable regulations, the applicant bears the
burden of proof that he or she is a U.S. citizen, 22 C.F.R.
§ 51.40, and “[t]he applicant must provide documentary evidence
that he or she is a U.S. citizen or non-citizen national,” id.
§ 51.41. For a person born in the United States applying for a
passport for the first time, a birth certificate serves as
primary evidence, and “[t]he birth certificate must show the
full name of the applicant, the applicant’s place and date of
birth, the full name of the parent(s), and must be signed by the
official custodian of birth records, bear the seal of the
issuing office, and show a filing date within one year of the
date of birth.” Id. § 51.42(a). “Secondary evidence includes but
is not limited to hospital birth certificates, baptismal
certificates, medical and school records, certificates of
circumcision, other documentary evidence created shortly after
birth but generally not more than 5 years after birth, and/or
affidavits of persons having personal knowledge of the facts of
the birth.” Id. § 51.42(b).
For first-time passport applicants born outside the United
States, the person “must submit documentary evidence,” which
7
includes a CRBA, certificate of naturalization, and certificate
of citizenship. Id. § 51.43(a)-(b). “An applicant without one of
these documents must produce supporting documents as required by
the [State] Department, showing acquisition of U.S. citizenship
under the relevant provisions of law.” Id. § 51.43(b)(2).
For CRBA applicants, “[p]roof of [the] child’s birth
usually consists of, but is not limited to,” the following
documents: (1) “an authentic copy of the record of the birth
filed with local authorities”; (2) “a baptismal certificate”;
(3) “a military hospital certificate of birth”; or (4) “an
affidavit of the doctor or the person attending the birth.” 22
C.F.R. § 50.5(a). Where there is no proof of the child’s birth,
“the person seeking to register the birth shall submit his
affidavit explaining why such proof is not available and setting
forth the facts relating to the birth.” Id. As for the proof of
the child’s citizenship, “[e]vidence of parent’s citizenship
and, if pertinent, evidence of parent’s physical presence in the
United States as required for transmittal of claim of
citizenship by the [INA] shall be submitted.” Id. § 50.5(b).
The State Department has the discretion to require
additional evidence in support of an application. E.g.,
22 C.F.R. § 51.45 (“The Department may require an applicant to
provide any evidence that it deems necessary to establish that
he or she is a U.S. citizen or non-citizen national, including
8
evidence in addition to the evidence specified in 22 CFR 51.42
through 51.44.”); 22 C.F.R. § 51.23(c) (“The Department may
require such additional evidence of identity as it deems
necessary.”).
3. Personal Appearance for First-Time Applicants
Before the issuance of a first-time passport, “the
application shall be duly verified by his oath before a person
authorized and empowered by the Secretary of State to administer
oaths.” 22 U.S.C. § 213; see also 22 U.S.C. § 212 (“No passport
shall be granted or issued to or verified for any other persons
than those owing allegiance, whether citizens or not, to the
United States.”). Generally, a minor under the age of sixteen
should appear with his or her parents or legal guardians when
applying for a CRBA and passport. See 22 C.F.R. § 51.28(a)(1)
(“Minors under 16 years of age applying for a passport must
appear in person, unless the personal appearance of the minor is
specifically excused by a senior passport authorizing officer,
pursuant to guidance issued by the Department.”); see also 7
Foreign Affairs Manual (“FAM”) § 1444.1(c) (explaining that
“[w]hen the infant or child is seriously ill and the subject of
a medical evacuation, a personal appearance may not be possible”
and the family may pursue the CRBA after the medical
evacuation).
9
Finally, the consular officer has the discretion to require
the personal appearance of the minor, especially “when the
consular officer suspects that the child is deceased or that the
child’s true identity is not being reported.” 7 FAM § 1444.1(b).
If the personal appearance is excused, the Secretary’s
designated official administers the oath to the parents or legal
guardians executing the application on behalf of the minor.
22 C.F.R. § 51.28(a)(1).
B. Factual and Procedural Background
Mr. Sabra, a naturalized U.S. citizen, was born in
Jerusalem, and he is domiciled in California. Pl.’s SOMF, ECF
No. 21-2 at 8; see also Def.’s Ex. 2, ECF No. 18-3 at 30. His
wife, Mrs. Sabra, is a U.S. citizen who was born in Connecticut.
Def.’s Ex. 2, ECF No. 18-3 at 29. Mr. and Mrs. Sabra have been
married since 1995, 3 see Def.’s Ex. 2, ECF No. 18-3 at 28, and
they had three daughters before Baby M’s birth, see P. Sabra
Decl., ECF No. 52-2 at 2 ¶ 6; see also Pl.’s SOMF, ECF No. 21-2
at 3.
3 The year in Mr. Sabra’s Statement of Material Facts is
inconsistent with the year on the official marriage license.
Compare Pl.’s SOMF, ECF No. 21-2 at 9 (stating that Mr. and Mrs.
Sabra have been married since 1998), with Def.’s Ex. 2, ECF No.
18-3 at 28 (showing that the State of Connecticut issued the
marriage license on October 3, 1995). Mrs. Sabra avers that she
has been married to Mr. Sabra since 1995. Decl. of Ponn Sabra
(“P. Sabra Decl.”), ECF No. 52-2 at 2 ¶ 5.
10
1. The Pregnancy and Baby M’s Birth
In September 2018, Mrs. Sabra moved from the United States
to Gaza with her three daughters because her two eldest
daughters attend college there. P. Sabra Decl., ECF No. 52-2 at
2 ¶ 8. After arriving in Gaza, Mrs. Sabra discovered that she
was pregnant with Baby M. Id. at 2 ¶ 9. Mrs. Sabra decided to
stay in Gaza to be close to Mr. Sabra’s family there. Id. at 3 ¶
12. At all relevant times, Mrs. Sabra’s age satisfied the World
Health Organization’s definition for women of child-bearing age,
which is 15 to 49 years old. Pl.’s SOMF, ECF No. 21-2 at 3
(“[Mrs.] Sabra was 46 years old at the time of [Baby M’s] birth
. . . .”). Due to Mrs. Sabra’s advanced age, however, the
pregnancy was deemed a risky one. E.g., P. Sabra Decl., ECF No.
52-2 at 3 ¶ 13; Translated Decl. of Samera Sabra (“S. Sabra
Decl.”), ECF No. 42-3 at 4 ¶ 8. Throughout the high-risk
pregnancy, Mrs. Sabra did not have any ultrasounds. P. Sabra
Decl., ECF No. 52-2 at 3 ¶ 13 (“I knew that, due to my age, I
would be considered at a higher risk for complications”; “[M]y
husband and I decided to trust our faith and not have
ultrasounds”).
In 2019, Baby M was born in Gaza. Id. at 3 ¶ 18 (“[Baby M]
was born in our home. My mother-in-law and my older daughters
11
were present at the time.”). 4 Mrs. Sabra’s neighbor, Dr.
[REDACTED](“Dr. [REDACTED]”), arrived at Ms. Sabra’s home after
Baby M’s birth, prescribed Mrs. Sabra post-natal antibiotics,
and assisted the family with transporting Baby M to a hospital.
Id. at 3 ¶¶ 17-19. According to the neighbor, Baby M suffered
from certain medical conditions, and she was treated at Al Shifa
hospital in Gaza. Decl. of [REDACTED] (“[REDACTED] Decl.”), ECF
No. 1-3 at 2 ¶ 5.
Moments before Baby M’s birth, there was “intense bombing
in Gaza City.” P. Sabra Decl., ECF No. 52-2 at 3 ¶ 16. The
conflict in Gaza, the West Bank, and Israel is well-documented.
According to the State Department, “[s]poradic mortar or rocket
fire and corresponding Israeli military responses may occur [in
Gaza] at any time.” Israel, The West Bank and Gaza Travel
Advisory, U.S. Dep’t of State (Dec. 28, 2018),
https://travel.state.gov/content/travel/en/traveladvisories/trav
eladvisories/israel-west-bank-and-gaza-travel-advisory.html
[hereinafter “Travel Advisory”]. 5 On its website, the State
4 Baby M’s date of birth is redacted in the filings to protect
her privacy. See Fed. R. Civ. P. 5.2(a)(2); see also LCvR
5.4(f)(3). The State Department contends that it lacks
sufficient information to verify Baby M’s date of birth. Def.’s
Opp’n, ECF No. 28 at 15; see also Pl.’s Reply to Def.’s
Counterstatement to Pl.’s SOMF, ECF No. 23-1 at 2.
5 The Court takes judicial notice of the information on the State
Department’s official website, which is a “source[] whose
accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b)(2); see also Humane Soc’y of United States v. Animal &
12
Department has cautioned U.S. citizens: “Do not travel to . . .
Gaza due to terrorism, civil unrest, and armed conflict.” Id.;
see also Decl. of Joshua D. Woda (“Woda Decl.”), ECF No. 18-3 at
1 ¶ 4 (explaining that the State Department has a “long-standing
Travel Advisory urging all U.S. citizens not to travel to
Gaza”).
“Since 2007, Gaza has been under the de facto control of
Hamas, a U.S. government-designated Foreign Terrorist
Organization (‘FTO’).” Woda Decl., ECF No. 18-3 at 1 ¶ 4. The
Embassy regularly assists U.S. citizens with leaving Gaza. Id.
Because U.S. employees are prohibited from entering Gaza, a U.S.
citizen living in Gaza must obtain a permit from Israeli
authorities to enter Israel where the Embassy is located. Id.
Embassy officials travel to Erez Crossing—the entry point
between the Gaza Strip and Israel—every six months to provide
certain services to U.S. citizens, such as “passport services
for newborns and other consular services.” Id.
2. The CRBA and Passport Application Process
On June 11, 2019, Mrs. Sabra contacted the Embassy and
requested an emergency appointment at Erez Crossing to obtain a
CRBA and U.S. passport for Baby M. Pl.’s SOMF, ECF No. 21-1 at
Plant Health Inspection Serv., 386 F. Supp. 3d 34, 40 n.2
(D.D.C. 2019) (taking judicial notice of documents and other
sources from an agency’s government website).
13
1. During her telephone conversation with an Embassy official,
Mrs. Sabra stated that Baby M needed the CRBA and passport for
medical treatment in the United States because Baby M had
serious health issues. Id. The Embassy official then scheduled
her appointment, advising Mrs. Sabra to bring certain
documentation in support of her applications. Id.
On June 12, 2019, Mrs. Sabra attended the scheduled
appointment with Joshua D. Woda, a Foreign Service Officer with
the State Department and Vice-Consul at the Embassy (“Vice-
Consul Woda”). Woda Decl., ECF No. 18-3 at 2 ¶ 8. Vice-Consul
Woda served in the Embassy’s American Citizen Services (“ACS”)
passport and citizenship unit, which issues passports and CRBAs.
Id. at 1 ¶ 1; see also 7 FAM 020 App. B (outlining “ACS
Responsibilities”). Vice-Consul Woda accepted Mrs. Sabra’s
applications and supporting documentation on behalf of Baby M.
See, e.g., Woda Decl., ECF No. 18-3 at 2 ¶ 8; Passport
Application, Def.’s Ex. 2, ECF No. 18-3 at 14-15; CRBA
Application, Def.’s Ex. 2 at 20-25.
Mrs. Sabra told Vice-Consul Woda that Baby M’s absence was
due to her hospitalization. Woda Decl., ECF No. 18-3 at 2 ¶ 9;
see also Pl.’s SOMF, ECF No. 21-2 at 2. Mrs. Sabra presented a
“Pediatric Admission Form,” which was primarily written in
English, as evidence of Baby M’s medical condition, Woda Suppl.
Decl., ECF No. 28-2 at 1 ¶¶ 4-6, but Vice-Consul Woda determined
14
that the document did not appear to be prepared “in the regular
course of [Baby M’s] medical treatment,” Woda Decl., ECF No. 18-
3 at 2 ¶ 9. Vice-Consul Woda observed that the form did not
indicate the hospital that generated the form, Woda Suppl.
Decl., ECF No. 28-2 at 1 ¶ 5, and Vice-Consul Woda concluded
that the form was “prepared specifically for presentation to the
Embassy” because it is “written entirely in English,” id. at 1 ¶
4. Vice-Consul Woda found that the document was “insufficient to
demonstrate emergency circumstances and waive the personal
appearance of the child” under the applicable regulations. Woda
Decl., ECF No. 18-3 at 2 ¶ 9.
3. Mrs. Sabra’s Initial Documentation
During the June 12, 2019 interview, Mrs. Sabra submitted
the following documents in support of the CRBA and passport
applications: (1) “a copy and translation of a birth certificate
issued on June 10, 2019, by the Palestinian Authority, Ministry
of Interior, General Administration of Civil Affairs,” Pl.’s
SOMF, ECF No. 21-2 at 2; (2) “copies of [Mrs.] Sabra and [Mr.]
Sabra’s U.S. passport biographical information pages,” id.;
(3) “a power of attorney document executed by Max Sabra on March
6, 2015,” id.; (4) “a 1995 Connecticut State Marriage
Certificate of [Mr.] Sabra and [Mrs. Sabra],” id.; and (5) a
“Pediatric Admission Form” dated June 9, 2019 and issued by the
State of Palestine, Ministry of Health, General Directory of
15
Hospitals, Def.’s Ex. 6, ECF No. 28-2 at 3.
After reviewing the documents, Vice-Consul Woda advised
Mrs. Sabra that the “power of attorney document” failed to
comply with the requirement for the consent of both parents for
the issuance of a passport to a minor. Woda Decl., ECF No. 18-3
at 3 ¶ 13; see also Def.’s Ex. 2, ECF No. 18-3 at 18-19 (showing
the “Power of Attorney” document signed by “Max Sabra, A/K/A
Mohammed Sabra”). Although Vice-Consul Woda noted that the
Palestinian birth certificate appeared, on its face, to be
“genuine,” the document was issued “well after [Baby M’s]
birth.” Def.’s Ex. 1, ECF No. 18-3 at 8 (“ACS Activity Log”);
see also Birth Certificate, Def.’s Ex. 1, ECF No. 18-3 at 16-17.
Vice-Consul Woda could not verify “[Baby M’s] record of birth,”
which was signed by Dr. Bayan Saleh, Woda Decl., ECF No. 18-3 at
2 ¶ 8, because the Embassy has “no real method of verifying
documents issued in the Gaza Strip,” Def.’s Ex. 1, ECF No. 18-3
at 8.
According to Vice-Consul Woda, Mrs. Sabra claimed that Baby
M was born at a private clinic during the June 12, 2019
interview. Woda Decl., ECF No. 18-3 at 5 ¶ 21. Mrs. Sabra did
not provide any documentary evidence of post-natal care during
the June 12, 2019 interview. Id. at 3 ¶ 10; see also Pl.’s SOMF,
ECF No. 21-2 at 3. Neither did Mrs. Sabra provide information
about the Sabra family’s travel plans to the United States for
16
Baby M’s medical treatment. Woda Decl., ECF No. 18-3 at 3 ¶ 10.
Vice-Consul Woda avers that “[Mrs.] Sabra could not explain how
[Baby M] would be able to take a transatlantic flight to the
United States, which would first require overland travel to
Amman, Cairo, or Tel Aviv, when [Baby M] was not well enough to
appear for the interview at the Erez crossing, and appeared to
have no plan [for] the child’s travel or subsequent treatment.”
Id.
In the end, Vice-Consul Woda did not approve the
applications, but Vice-Consul Woda explained to Mrs. Sabra that
“additional evidence of her biological relationship with” Baby M
“could include submission of pre and post-natal medical records,
ultrasounds, and/or photos of [Mrs.] Sabra during her
pregnancy.” Id. at 3 ¶ 12. Vice-Consul Woda suggested DNA
testing to establish “a mother-child relationship.” Id. at 3 ¶
13; see also Pl.’s Ex. E, ECF No. 3 at 49 (“Proof of biological
relationship”; “we suggest DNA”). Mrs. Sabra, however, “objected
to DNA testing due to the anticipated processing time and stated
that the family could not wait in Gaza for the results.” Pl.’s
SOMF, ECF No. 21-2 at 4.
4. The Embassy’s Concerns with the Submissions
At some point, the Embassy received a discharge record
indicating that Baby M was born in a “private clinic.” E.g.,
Pl.’s SOMF, ECF No. 21-2 at 3; Pl.’s Ex. F, ECF No. 3 at 51-52
17
(“Place of Birth: Birthing Center”; “Name: Private Clinic”); E-
mail from Christina Jump, Esq., to ACS Unit, U.S. Embassy,
Jerusalem (June 28, 2019), Pl.’s Ex. I, ECF No. 3 at 66 (stating
that “the attached Exhibit A is the discharge record from the
clinic where [Baby M] was born, issued and stamped by the
Palestinian National Authority, which shows [Mrs.] Sabra and
[Mr.] Sabra to be the parents of [Baby M]”). The machine-printed
birth certificate contains white-out and a handwritten
alteration at box 5 “Place of birth.” Pl.’s SOMF, ECF No. 21-2
at 3; see also Pl.’s Ex. F, ECF No. 3 at 51. The words “private
clinic,” in Arabic, were written by hand over the whiteout. Woda
Decl., ECF No. 18-3 at 3 ¶ 10; see also P. Sabra Decl., ECF No.
52-2 at 4 ¶ 23 (“To the best of my knowledge, the one area that
was modified was to reflect that [Baby M] was not actually born
at Al Shifa but was born in a private setting, our home,
instead.”). Vice-Consul Woda determined that the document was
not a record of “discharge” from a hospital for Baby M or Mrs.
Sabra. Woda Decl., ECF No. 18-3 at 3 ¶ 10.
On June 21, 2019, Mr. Sabra sent an e-mail to the Embassy
with documents showing that Mrs. Sabra was prescribed pre-natal
vitamins and “documents purporting to show that [she] received
fertility treatment in the United States from February to May
2018.” Woda Decl., ECF No. 18-3 at 4 ¶ 15; see also Pl.’s SOMF,
ECF No. 21-2 at 5. Vice-Consul Woda determined that those
18
documents “were from at least 12 months before [Baby M’s] birth,
and thus had no bearing on whether [Mrs.] Sabra was actually
pregnant, and gave birth to [Baby M].” Woda Decl., ECF No. 18-3
at 4 ¶ 15. Given Mrs. Sabra’s claims that Baby M’s life was in
danger, the Embassy offered to assist the family with obtaining
a permit for Baby M in order for her to receive medical
treatment in Israel. Id. at 4 ¶ 16. The Sabra family declined
the Embassy’s offer. See Pl.’s SOMF, ECF No. 21-2 at 5-6.
On June 25, 2019, the Embassy’s ACS Unit received an e-mail
from Plaintiff’s counsel. Id. at 6. Plaintiff’s counsel
“asserted that DNA testing is against [Mrs.] Sabra’s sincerely
held religious beliefs as a practicing Muslim and that [Baby M]
could not withstand ‘either the trip to the Embassy for a DNA
sample or the thirty (30) day wait for results articulated by
U.S. Embassy officials in Jerusalem – without urgent medical
treatment which she cannot receive in Gaza, Baby M is not likely
to survive another thirty days.’” Id. (citation omitted). In
response, on June 28, 2019, the Embassy reiterated its offer to
assist the Sabra family to obtain permits from the Israeli
government for Baby M’s urgent medical treatment. Id. Again, the
Sabra family declined the Embassy’s offer. See id.
5. The Additional Documentation
On June 28, 2019, Plaintiff’s counsel submitted additional
documents to the Embassy, including a declaration, dated June
19
25, 2019, from Dr. [REDACTED] at the Al Shifa hospital in the
Gaza Strip concerning Baby M’s medical condition. Id. To verify
Dr. [REDACTED]’s averments, Vice-Consul Woda called the hospital
on July 1, 2019. Woda Decl., ECF No. 18-3 at 5 ¶¶ 19-20. Vice-
Consul Woda used a translator for the telephone conversation
with Dr. [REDACTED] because he learned that Dr. [REDACTED] did
not speak English. Id. at 5 ¶ 20. The declaration was written in
English without an accompanying Arabic translation. [REDACTED]
Decl., ECF No. 1-3 at 2.
Dr. [REDACTED] confirmed to Vice-Consul Woda that he was
Mrs. Sabra’s neighbor, and that he received a telephone call
requesting his assistance at the Sabra family home because Mrs.
Sabra was in labor. Pl.’s SOMF, ECF No. 21-2 at 7. The doctor
stated that he arrived at Mrs. Sabra’s home after Baby M’s
birth. Id. The doctor further stated that he was not involved
with the medical care of Baby M, that he had not seen Baby M or
Mrs. Sabra since the day he was called to the home for Baby M’s
birth, and that he could not comment on Baby M’s condition. Id.
Plaintiff’s counsel, however, e-mailed the Embassy on July 8,
2019, stating, inter alia, that the Embassy officials had
“evidence” that included “Dr. [REDACTED]’s direct statement to
Embassy personnel that he personally delivered Baby [M].” E-mail
from Christina Jump, Esq., to ACS Unit, U.S. Embassy, Jerusalem
20
(July 8, 2019), Pl.’s Ex. J, ECF No. 3 at 75. 6 The doctor did not
personally deliver Baby M, and the doctor did not witness Baby
M’s birth. Pl.’s SOMF, ECF No. 21-2 at 8.
At some point, Mr. and Mrs. Sabra provided the following
documents to support their claim that Baby M is their child:
(1) Mr. Sabra’s Palestinian national identification card with
Baby M listed as his child, Pl.’s Ex. 2, ECF No. 23-2 at 5-8;
(2) a “Statement of Consent” form for the issuance of a U.S.
passport to a minor under the age of sixteen signed by Mr. Sabra
on June 26, 2019, Pl.’s Ex. K, ECF No. 3 at 86-88; (3) a
“Physical Exam” document, dated March 2, 2018, stating under the
[REDACTED] section that “[REDACTED],” Pl.’s Ex. 1, ECF No. 21-1
at 7; and (4) a photograph of [REDACTED], Pl.’s Ex. 4, ECF No.
23-2 at 12.
The Embassy permitted the Sabra family to submit additional
evidence in support of the pending applications. Pl.’s SOMF, ECF
No. 21-2 at 8. The Embassy advised Plaintiff’s counsel that the
CRBA and passport applications would remain open until September
13, 2019. Id. And the Embassy explained that the Sabra family
could submit a request for a decision on the pending
6 Plaintiff’s counsel stated that Dr. [REDACTED] “is in fact the
doctor who delivered Baby [M] when [Mrs.] Sabra went into labor
in [2019]; he therefore directly confirmed his personal
knowledge that she is the biological mother of Baby [M].” E-mail
from Christina Jump, Esq., to ACS Unit, U.S. Embassy, Jerusalem
(July 8, 2019), Pl.’s Ex. J, ECF No. 3 at 75.
21
applications before the September 2019 deadline. Id. Mr. and
Mrs. Sabra, however, did not request the adjudication of the
applications. Woda Decl., ECF No. 18-3 at 6 ¶ 25.
6. The Present Lawsuit
Before the Embassy rendered a final decision on the CRBA
and passport applications, Mr. Sabra, as next friend of Baby M,
filed the instant action in this District on July 15, 2019,
seeking declaratory, mandamus, and injunctive relief. See
Compl., ECF No. 1 at 2 ¶ 1; see also Sealed Compl., ECF No. 3 at
2 ¶ 1. Mr. Sabra asserts three claims for relief. See Compl.,
ECF No. 1 at 13-18 ¶¶ 50-77. Count I alleges that Mr. Sabra is
entitled to a “declaratory judgment that [Mr. Sabra] and
[Mrs. Sabra] have sufficiently proven the biological
relationship between themselves and Baby M,” id. at 13 ¶ 51, and
the Secretary’s “failure to provide [Baby M] with a CRBA and
U.S. passport constitutes a violation of her fundamental rights
to citizenship and travel under the Fifth Amendment to the U.S.
Constitution,” id. at 14 ¶ 57. Count II alleges that Mr. Sabra
is entitled to a writ of mandamus to compel the Secretary to
issue Baby M a CRBA and passport because “[Mr. Sabra] has more
than satisfied the requirement to provide proof of the parent-
child relationship by a preponderance of the evidence.” Id. at
15 ¶ 59. Count III alleges that Mr. Sabra is entitled to an
injunction to “prevent[] [the Secretary] from further delay of
22
Baby M’s application[s] pending submission to and the results of
a DNA test.” Id. at 18 ¶ 77. In the alternative, Mr. Sabra
asserts that the Secretary’s request for DNA testing and
photographs of Mrs. Sabra during the pregnancy “conflict[s] with
[Mr. Sabra’s] and his wife’s already articulated sincerely held
religious beliefs” in violation of RFRA (“Count IV”). Id. at 18
¶ 78.
On July 19, 2019, Chief Judge Beryl A. Howell granted
Mr. Sabra’s motion for leave to file under seal certain exhibits
attached to the complaint. Order, ECF No. 6 at 1-4. On the same
day, the case was randomly assigned to this Court. See generally
Docket for Civ. Action No. 19-2090. On August 1, 2019, Mr. Sabra
filed a motion for expedited consideration of the complaint
pursuant to Federal Rule of Civil Procedure 57, claiming that
“Baby M’s health remains at great risk” and “her need for
additional medical care remains urgent.” Pl.’s Emergency Mot. to
Expedite, ECF No. 12 at 4. The next day, on August 2, 2019, this
Court held a status conference. See Min. Entry of Aug. 2, 2019.
7. The Briefing
Before the status conference, Mr. Sabra agreed to withdraw
his emergency motion for expedited consideration, and the
parties agreed to an expedited briefing schedule on the merits
of the complaint. Joint Status Report, ECF No. 14 at 1 ¶ 4. The
Court adopted in part the parties proposed briefing schedule for
23
cross-motions for summary judgment. See, e.g., Min. Entry of
Aug. 2, 2019; Def.’s Mot. for Summ. J. (“Def.’s MSJ”), ECF No.
18; Pl.’s Mot. for Summ. J. (“Pl.’s MSJ”), ECF No. 15. After
those motions became ripe, the Court held a hearing on August
16, 2019. See Min. Entry of Aug. 16, 2019. In recognizing that a
“minor . . . who does not have a duly appointed representative
may sue by a next friend or by a guardian ad litem,” Fed. R.
Civ. P. 17(c)(2), this Court appointed Amy Jeffress, Esq., of
Arnold & Porter Kaye Scholer LLP as Baby M’s guardian ad litem,
Min. Order of Aug. 16, 2019. 7 The Court directed the Clerk of
Court to add Baby M as a petitioner in this case. Min. Order of
Aug. 16, 2019.
The Court continued the motions hearing until August 27,
2019, and the Court ordered supplemental briefing on the
applicability of 8 U.S.C. § 1503 and the origins of the
“biological requirement” in the State Department’s Foreign
Affairs Manual. Min. Order of Aug. 16, 2019. Mr. Sabra filed his
supplemental brief on August 21, 2019, see generally Pl.’s
Suppl. Mem., ECF No. 30, the government filed its supplemental
brief on August 26, 2019, see generally Def.’s Suppl. Br., ECF
No. 34, the guardian ad litem filed a memorandum on behalf of
Baby M on August 26, 2019, see generally Pet’r’s Mem., ECF No.
7 The Court expresses its appreciation to Ms. Jeffress and the
law firm of Arnold & Porter Kaye Scholer LLP.
24
36, and Mr. Sabra filed his reply brief on September 3, 2019,
see generally Pl.’s Reply, ECF No. 42.
8. Baby M’s Health
Between August 16 and August 27, 2019, the Court directed
Mr. Sabra to provide updates on Baby M’s medical condition. See
Docket for Civ. Action No. 19-2090. Mr. Sabra, through counsel,
acknowledged the State Department’s offer to assist his family
with entering Israel for Baby M’s urgent medical treatment. Mot.
Hr’g Rough Tr. (Aug. 16, 2019) at 11. The guardian ad litem
“engaged with counsel to pursue alternative avenues to obtain
medical treatment for Baby M as expeditiously as possible.”
Pet’r’s Mem., ECF No. 36 at 4. Over the course of the
litigation, Baby M’s health improved based on Plaintiff’s
counsel’s representations to the Court. Mr. Sabra, however, did
not provide the Court with written medical records to confirm
Baby M’s medical condition. See Joint Status Report, ECF No. 32
at 1.
On August 16, 2019, the Secretary advised the Court that
the Sabra family may apply to the United States Customs and
Immigration Services (“USCIS”), a non-party in this case, for
Baby M’s humanitarian (medical) parole for entry into the United
States. See Min. Order of Aug. 16, 2019; see also Def.’s Notice
Regarding Parole, ECF No. 31 at 1. On August 22, 2019, the
Secretary confirmed that it would not deem the parole
25
application as Mr. Sabra’s admission that “Baby M is not a U.S.
citizen, an abandonment of any claim to U.S. citizenship
asserted by Baby M to date, or a waiver of any right Baby M may
have to assert a claim of U.S. citizenship in the future.”
Def.’s Notice Regarding Parole, ECF No. 31 at 1. On August 23,
2019, the Secretary informed the Court that USCIS did not
receive an application for Baby M’s humanitarian (medical)
parole, but USCIS would expedite any application with notice.
Joint Status Report, ECF No. 32 at 3-4.
Based on Mr. Sabra’s representations that any written
medical “records [for Baby M] are sparse, if in existence at
all,” id. at 1, the Secretary contacted a physician practicing
in Gaza who had previously contracted with the Embassy to
perform medical examinations for visa applications, Def.’s
Status Report, ECF No. 40 at 1. The Secretary confirmed that the
physician was willing to perform a physical examination of Baby
M and author a report with the results of the examination. Id.
The Secretary filed under seal the name and contact information
of the physician. Def.’s Sealed Notice, ECF No. 45 at 1. At the
September 4, 2019 status conference, Plaintiff’s counsel did not
consent to the independent medical evaluation of Baby M, and
Plaintiff’s counsel confirmed that Baby M’s health was stable.
26
9. The Final Decision
At the Court’s direction, the Embassy extended the deadline
from September 13, 2019 to October 15, 2019, for the submission
of additional evidence in support of the CRBA and passport
applications. Joint Status Report, ECF No. 51 at 2. Given Baby
M’s stable condition, the Embassy offered Mr. and Mrs. Sabra a
November 2019 appointment at Erez Crossing in order for the
family to present Baby M to the consular officer. Id. at 1. The
Sabra family declined the offer, and the family suggested a
visual inspection via video link rather than Baby M’s personal
appearance at Erez Crossing. Id. at 2. In response, the Embassy
decided to adjudicate the CRBA and passport applications after
considering the submissions. Id. On October 22, 2019, the
Embassy sent Mr. and Mrs. Sabra a letter, informing them that:
“[t]he documentation and evidence submitted in support of the
applications does not sufficiently establish [Baby M’s] claim to
U.S. citizenship.” Letter from Elise B. Greene, ACS, U.S.
Embassy Jerusalem, to Ponn Sabra & Mohammed Sabra (Oct. 22,
2019), Ex. A, ECF No. 55-1 at 1 [hereinafter “Final Decision”].
The briefing is now complete, and the motions are ripe and
ready for the Court’s adjudication.
III. Legal Standard
A court shall grant summary judgment when “the movant shows
that there is no genuine dispute as to any material fact and the
27
movant is entitled to judgment as a matter of law.” Fed. R. Civ.
P. 56(a). A “material” fact is one capable of affecting the
substantive outcome of the litigation. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is
“genuine” if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. If material facts
are genuinely in dispute, or undisputed facts are susceptible to
divergent yet justifiable inferences, summary judgment is
inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.
2009).
“The rule governing cross-motions for summary judgment . .
. is that neither party waives the right to a full trial on the
merits by filing its own motion; each side concedes that no
material facts are at issue only for the purposes of its own
motion.” Sherwood v. Wash. Post, 871 F.2d 1144, 1147 n.4 (D.C.
Cir. 1989) (citation omitted). Summary judgment is appropriate
if the “pleadings, depositions, answers to interrogatories,
admissions on file, and affidavits show that there is no genuine
issue of material fact.” Carter v. Greenspan, 304 F. Supp. 2d
13, 20 (D.D.C. 2004). “[C]onclusory allegations and
unsubstantiated speculation, whether in the form of a
plaintiff’s own testimony or other evidence submitted by a
plaintiff to oppose a summary judgment motion, do not create
genuine issues of material fact.” Mokhtar v. Kerry, 83 F. Supp.
28
3d 49, 61 (D.D.C. 2015) (citation and internal quotation marks
omitted), aff’d, No. 15-5137, 2015 WL 9309960 (D.C. Cir. Dec. 4,
2015).
IV. Analysis
Mr. Sabra moves for summary judgment on Counts I through
III, arguing that a declaratory judgment is proper because Baby
M is a U.S. citizen and the documentation provided to the
Embassy establishes, by a preponderance of the evidence, that
Baby M has a biological relationship with Mr. and Mrs. Sabra.
Pl.’s Mem. in Supp. of Pl.’s MSJ (“Pl.’s Mem.”), ECF No. 15-2 at
3, 8. With respect to Count I, Mr. Sabra contends that the
Secretary’s failure to recognize Baby M’s right to citizenship
violates the due process guarantee under the Fifth Amendment.
Id. at 5. As to Count II, Mr. Sabra argues that a writ of
mandamus is appropriate to compel the Embassy to issue the CRBA
and passport to Baby M. Id. at 10. With respect to Count III,
Mr. Sabra urges this Court to enjoin the Secretary from further
delay in processing Baby M’s applications. Id. at 3-4, 9.
The Secretary moves for summary judgment, arguing that the
CRBA and passport applications for Baby M are based on a
“suspicion of fraud,” and that the Embassy reasonably determined
that Mr. Sabra must satisfy the State Department’s biological
relationship requirement for Baby M’s entitlement to the CRBA
and passport. Def.’s MSJ, ECF No. 18 at 1. The Secretary argues
29
that summary judgment as to Counts I through IV is appropriate
because Mr. Sabra fails to establish a valid claim under the
APA, the writ of mandamus statute, or RFRA; thus, there is no
basis for the Court to exercise jurisdiction to grant injunctive
or declaratory relief. Def.’s Mem. of Law in Supp. of Def.’s MSJ
(“Def.’s Mem.”), ECF No. 18-1 at 31-32. The Secretary further
contends that Mr. Sabra fails to comply with the applicable
statutes and regulations that require proof of Baby M’s birth,
identity, and citizenship. Def.’s Opp’n, ECF No. 28 at 9.
For the reasons explained below, the Court agrees with the
Secretary that Mr. Sabra has failed to provide satisfactory
proof of Baby M’s birth, identity, and citizenship to establish
her entitlement to a CRBA and passport under the applicable
statutes and regulations, finding no due process violations. The
Court disagrees with the State Department’s interpretation that
the INA requires proof of a biological relationship in this
case. The Court disagrees with the Secretary that Mr. Sabra’s
RFRA claim fails because the evidence shows that the Embassy’s
request for DNA testing and photographs depicting Mrs. Sabra as
pregnant imposed a substantial burden on the religious exercise
of Mr. and Mrs. Sabra.
The Court first addresses the three jurisdictional issues:
(1) whether Mr. Sabra has standing to pursue his claims;
(2) whether this Court has subject-matter jurisdiction; and
30
(3) whether the doctrine of sovereign immunity bars Mr. Sabra’s
claims. The Court then turns to the parties’ arguments,
concluding that: (1) the Secretary is entitled to summary
judgment as a matter of law as to Counts I through III; and
(2) the Secretary is not entitled to summary judgment as to
Count IV because there is a genuine dispute regarding the issue
of whether the Embassy’s request for the DNA testing and Mrs.
Sabra’s pregnancy photographs served a compelling interest by
the least restrictive means under RFRA.
A. Subject-Matter Jurisdiction
Before reaching the merits, the Court must confirm its own
subject-matter jurisdiction. Moms Against Mercury v. Food & Drug
Admin., 483 F.3d 824, 826 (D.C. Cir. 2007) (citing Steel Co. v.
Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998)). Lack of
standing is a defect in subject-matter jurisdiction. Haase v.
Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “Where both
standing and subject matter jurisdiction are at issue, however,
a court may inquire into either and, finding it lacking, dismiss
the matter without reaching the other.” Moms Against Mercury,
483 F.3d at 826.
Mr. Sabra invokes three bases for jurisdiction:
(1) 28 U.S.C. § 1331 (federal question); (2) 28 U.S.C. §§ 2201–
2202 (declaratory judgment); and (3) 28 U.S.C. § 1361
(mandamus). Compl., ECF No. 1 at 3 ¶ 7, 4 ¶ 8. The Secretary
31
argues that this Court lacks subject-matter jurisdiction because
Mr. Sabra lacks standing, and the Court has no mandamus
jurisdiction to order the Secretary to perform a discretionary
duty. Def.’s Mem., ECF No. 18-1 at 23-27, 30-31. The Court will
address each argument in turn.
1. Mr. Sabra Has Standing
The Court begins with the standing analysis. “Article III
of the Constitution limits the jurisdiction of the federal
courts to ‘Cases’ and ‘Controversies.’” Susan B. Anthony List v.
Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S. Const., art.
III, § 2). “‘One element of the case-or-controversy requirement’
is that plaintiffs ‘must establish that they have standing to
sue.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)
(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). To establish
standing, “a plaintiff must show (1) an ‘injury in fact,’ (2) a
sufficient ‘causal connection between the injury and the conduct
complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will
be redressed by a favorable decision.’” Susan B. Anthony List,
573 U.S. at 158 (quoting Lujan v. Defs. of Wildlife, 504 U.S.
555, 560-61 (1992)); see also Newdow v. Roberts, 603 F.3d 1002,
1010 (D.C. Cir. 2010) (“The absence of any one of these three
elements defeats standing.”). The plaintiff bears the burden of
demonstrating constitutional standing. Steel Co., 523 U.S. at
104.
32
Here, as Baby M’s CRBA and passport applications were
pending, the Secretary moved for summary judgment on standing
and ripeness grounds. See Def.’s Mem., ECF No. 18-1 at 23-27.
Given the status of the applications, the Secretary argued that
this Court lacks subject-matter jurisdiction to hear Mr. Sabra’s
claims because the Embassy did not issue a decision on the CRBA
and passport applications to constitute “final agency action”
under the APA. Id. at 23. The Secretary only challenged the
first prong of Article III standing, arguing that Mr. Sabra
failed to demonstrate that he or Baby M suffered any harm or
injury from the Embassy’s request for additional information in
support of the CRBA and passport applications. Id. at 24-25. In
the Secretary’s view, Mr. Sabra lacked standing, and his claims
based on the Embassy’s action (or inaction) were not ripe for
adjudication. Id. at 23-27. For the reasons explained below, the
Secretary’s arguments, however, are moot.
It is undisputed that the Embassy had not issued a decision
on the pending applications when the parties filed the cross-
motions for summary judgment in August 2019. See, e.g., Def.’s
SOMF, ECF No. 18-2 at 6; Pl.’s SOMF, ECF No. 21-2 at 8. It is
uncontested that the Embassy extended the deadline for the
submission of additional evidence in support of the pending
applications to September 2019. See Pl.’s SOMF, ECF No. 21-2 at
8; see also E-mail from ACS Unit, U.S. Embassy, Jerusalem, to
33
Christina Jump, Esq. (June 28, 2019), Pl.’s Ex. H, ECF No. 1-10
at 2 (stating that “the application will remain pending until
September 13, 2019”). In October 2019, the Embassy issued a
final decision on the applications. Final Decision, ECF No. 55-1
at 2. The Court therefore finds that the Secretary’s standing
and ripeness arguments are moot.
Having found that the Embassy’s final decision mooted the
Secretary’s standing and ripeness arguments, this Court must
assure itself that standing exists in this case before
proceeding to the merits. Summers v. Earth Island Inst., 555
U.S. 488, 499 (2009) (“[I]t is well established that the court
has an independent obligation to assure that standing exists,
regardless of whether it is challenged by any of the parties.”).
For purposes of the standing inquiry, this Court must assume
that Mr. Sabra would succeed on the merits of his claims.
Schnitzler v. United States, 761 F.3d 33, 40 (D.C. Cir. 2014).
(“[I]n reviewing the standing question, the court must . . .
assume that on the merits the plaintiffs would be successful in
their claims.”).
Assuming Mr. Sabra’s success on the merits, Mr. Sabra
easily satisfies Article III standing’s first and second prongs—
injury-in-fact and causation—because Mr. Sabra challenges the
Embassy’s denial of the CRBA and passport applications, and
Mr. Sabra alleges that he, along with Baby M, suffered a
34
particularized injury that is fairly traceable to the Embassy’s
challenged action. See Lujan, 504 U.S. at 560-61. The issue of
whether Mr. Sabra meets the redressability prong is less
straightforward.
“Redressability examines whether the relief sought,
assuming that the court chooses to grant it, will likely
alleviate the particularized injury alleged by the plaintiff.”
Orangeburg v. FERC, 862 F.3d 1071, 1083 (D.C. Cir. 2017)
(citation omitted). Mr. Sabra seeks two forms of relief to
redress his injury: (1) a declaratory judgment that Baby M is
immediately eligible for U.S. citizenship and that Mr. and Mrs.
Sabra have provided the Embassy with sufficient proof of the
biological relationship between them and Baby M, Compl., ECF No.
1 at 13 ¶¶ 51-52; and (2) a writ of mandamus compelling the
Secretary to issue the CRBA and passport, id. at 16 ¶¶ 67-69. 8
8 Mr. Sabra seeks an injunction prohibiting the Embassy from
delaying Baby M’s CRBA and passport applications until the
submission of DNA testing results. Compl., ECF No. 1 at 18 ¶ 77.
The Embassy’s October 22, 2019 final decision denying the
applications is an “intervening factual event” that renders as
moot his request for injunctive relief. Longwood Vill. Rest.,
Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 66 (D.D.C. 2001). Where,
as here, “the plaintiff retains some personal stake in the
controversy and there are some outstanding issues that a court
may resolve, those claims may proceed for review even though an
intervening event might have rendered other issues moot.” Id. In
light of the Embassy’s final decision, an injunction prohibiting
the Embassy from refusing to process Baby M’s applications would
“accomplish nothing.” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C.
Cir. 2008). The Court therefore finds as moot Mr. Sabra’s
request for injunctive relief. Accordingly, the Court DENIES
35
Mr. Sabra satisfies the redressability prong in seeking a
declaratory judgment that Baby M is entitled to U.S.
citizenship—such a declaration would redress his injury. See
Orangeburg, 862 F.3d at 1083. Mr. Sabra, however, fails to
satisfy the redressability element with respect to his request
for a writ of mandamus.
The parties agree that mandamus relief under 28 U.S.C.
§ 1361 is a “drastic remedy.” Compl., ECF No. 1 at 15 ¶ 61;
Pl.’s Mem., ECF No. 15-2 at 10; Def.’s Mem., ECF No. 18-1 at 29-
30. Indeed, the United States Court of Appeals for the District
of Columbia Circuit (“D.C. Circuit”) has instructed that “[t]he
remedy of mandamus is a drastic one, to be invoked only in
extraordinary circumstances.” Power v. Barnhart, 292 F.3d 781,
784 (D.C. Cir. 2002) (citation and internal quotation marks
omitted). “And it has long been settled that the Mandamus Act is
a law of last resort, available ‘only if [the plaintiff] has
exhausted all other avenues of relief and only if the defendant
owes him a clear nondiscretionary duty.’” Yee v. Jewell, 228 F.
Supp. 3d 48, 53 (D.D.C. 2017) (quoting Heckler v. Ringer, 466
U.S. 602, 616 (1984)).
“To show entitlement to mandamus, plaintiffs must
demonstrate (1) a clear and indisputable right to relief,
Mr. Sabra’s motion for summary judgment and GRANTS the
Secretary’s motion for summary judgment as to Count III.
36
(2) that the government agency or official is violating a clear
duty to act, and (3) that no adequate alternative remedy
exists.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C.
Cir. 2016). “These three threshold requirements are
jurisdictional; unless all are met, a court must dismiss the
case for lack of jurisdiction.” Id.; see also In re Medicare
Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (“Even
when the legal requirements for mandamus jurisdiction have been
satisfied, however, a court may grant relief only when it finds
compelling equitable grounds.”). Mr. Sabra bears “the burden of
showing that [his] right to issuance of the writ [of mandamus]
is clear and indisputable.” Power, 292 F.3d at 784 (citation and
internal quotation marks omitted).
Assuming, without deciding, that Mr. Sabra has a clear
right to relief, Mr. Sabra fails to demonstrate that the
Secretary has a clear duty to act. See Haig v. Agee, 453 U.S.
280, 282 (1981) (“The right to hold a passport is subordinate to
national security and foreign policy considerations, and is
subject to reasonable governmental regulation.”); see also
Def.’s Mem., ECF No. 18-1 at 32 (stating that “a U.S. Passport
or CRBA certainly qualifies as a ‘right or privilege as a
national.’” (quoting 8 U.S.C. § 1503)). As a member of this
Court explained, “passports are issued to all law-abiding
American citizens who apply for them and comply with the rules
37
prescribed,” but “it is not obligatory to issue one to every
citizen who desires it.” Alsaidi v. U.S. Dep’t of State, 292 F.
Supp. 3d 320, 327 (D.D.C. 2018) (citation omitted).
The Secretary correctly notes that “the action sought [in
this case] is discretionary, rather than ministerial.” Def.’s
Mem., ECF No. 18-1 at 31. Indeed, courts have recognized that
the issuance of CRBAs and passports falls within the Secretary’s
discretionary functions. See, e.g., Alsaidi, 292 F. Supp. 3d at
327 (finding that the “plaintiff ha[d] not demonstrated that
defendants owe[d] her a clear nondiscretionary duty” to renew
her U.S. passport where the National Passport Office determined
she was not a U.S. citizen); Retuya v. Chertoff, No. 8:08-CV-
935-T-17EAJ, 2009 WL 10697296, at *4 (M.D. Fla. Sept. 28, 2009)
(noting that “passport issuance is a discretionary function
exclusively reserved to the Executive Branch”), aff’d sub nom.
Retuya v. Sec’y, Dep’t of Homeland Sec., 412 F. App’x 185 (11th
Cir. 2010); Nickerson v. United States, No. CV 07-211 JH/WDS,
2007 WL 9662632, at *5 (D.N.M. Oct. 31, 2007) (explaining that
“the consular officer has full authority to either issue or deny
a CRBA depending on the officer’s subjective opinion whether the
applicant has established her claim to nationality”).
Congress expressly authorizes the Secretary to determine
the citizenship of a person outside of the United States.
8 U.S.C. § 1104(a). Section 211a explicitly provides that “[t]he
38
Secretary of State may grant and issue passports, and cause
passports to be granted, issued, and verified in foreign
countries by diplomatic and consular officers . . . on behalf of
the United States and no other person shall grant, issue, or
verify such passports.” 22 U.S.C. § 211a (emphasis added); see
also Dickson v. Sec’y of Def., 68 F.3d 1396, 1401 (D.C. Cir.
1995) (“When a statute uses a permissive term such as ‘may’
rather than a mandatory term such as ‘shall,’ this choice of
language suggests that Congress intends to confer some
discretion on the agency.”). Furthermore, “the consular officer
may issue to the parent or legal guardian” a CRBA based “[u]pon
application and the submission of satisfactory proof of birth,
identity and nationality.” 22 C.F.R. § 50.7(a) (emphasis added).
“Inasmuch as issuance of a passport is a discretionary
act,” Southern v. Powell, No. 03-5197, 2004 WL 434034, at *1
(D.C. Cir. Mar. 2, 2004) (per curiam), Mr. Sabra fails to meet
the heavy burden of demonstrating that the Secretary has a clear
duty to issue the CRBA and passport to Baby M in order to secure
mandamus relief. The Court therefore finds that Mr. Sabra does
not satisfy the redressability prong of Article III standing
with respect to his request for mandamus relief. Accordingly,
the Court DENIES Mr. Sabra’s motion for summary judgment and
GRANTS the Secretary’s motion for summary judgment as to Count
II.
39
As previously explained, however, Mr. Sabra has met his
burden of establishing the redressability element because he
seeks declaratory relief that would redress his injury. See
Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 34 (D.D.C. 2018) (“So
long as plaintiffs allege some remedy that, were it granted
would create some possibility of [relief], plaintiffs will have
plausibly pled redressability.” (internal citations omitted)).
The Court therefore finds that Mr. Sabra has standing to pursue
his claims. See NTCH, Inc. v. FCC, 841 F.3d 497, 506 (D.C. Cir.
2016) (“Because [the plaintiff] has articulated an injury that
is traceable to the [agency’s] order and might be redressed by a
favorable decision from the court, it has met the requirements
of Article III so as to achieve standing[.]”), cert. denied,
137 S. Ct. 2277 (2017).
2. The Court Has Subject-Matter Jurisdiction
The remaining two sources of jurisdiction—federal question
jurisdiction under 28 U.S.C. § 1331 and the Declaratory Judgment
Act (“DJA”), 28 U.S.C. § 2201—confer subject-matter
jurisdiction. The Secretary is correct that “a plaintiff may not
proceed under the [DJA] alone because it is not an independent
source of jurisdiction.” Def.’s Mem., ECF No. 18-1 at 31. But
the Secretary fails to mention Mr. Sabra’s constitutional
claims. See, e.g., id.; Def.’s Opp’n, ECF No. 28 at 5; Def.’s
Reply, ECF No. 29 at 7.
40
In Committee on Judiciary, U.S. House of Representatives v.
Miers, 558 F. Supp. 2d 53, 81 (D.D.C. 2008), a member of this
Court explained that where, as here, “the Constitution is the
source of the right allegedly violated, no other source of a
right—or independent cause of action—need be identified.” And
“in most cases a plaintiff would need to identify a statutory
(or a common law) cause of action to proceed in federal court,”
id., but that rule is inapplicable in “a case requesting
declaratory relief where subject matter jurisdiction was present
and a plaintiff’s constitutional rights were arguably implicated
simply because the plaintiff did not have an independent cause
of action apart from the DJA,” id. at 82.
In this case, this Court has subject-matter jurisdiction
under 28 U.S.C. § 1331. Because Mr. Sabra asserts constitutional
claims under the Fifth Amendment, see Compl., ECF No. 1 at 14 ¶
57, this Court’s jurisdiction “aris[es] under the Constitution .
. . of the United States,” 28 U.S.C. § 1331. Mr. Sabra argues
that “[his] claims, brought under the Fifth Amendment’s
guarantee of the right to due process, derive from the statutory
rights of Baby M to United States citizenship, because she was
born abroad to two United States citizens.” Pl.’s Opp’n, ECF No.
21 at 9. Mr. Sabra’s constitutional rights as well as Baby M’s
constitutional rights under the Fifth Amendment’s Due Process
Clause are “arguably implicated” by the Secretary’s denial of
41
the CRBA and passport applications. Miers, 558 F. Supp 2d at 82;
see also Shachtman v. Dulles, 225 F.2d 938, 941 (D.C. Cir. 1955)
(“The denial of a passport accordingly causes a deprivation of
liberty that a citizen otherwise would have.”). Putting aside
the DJA, Mr. Sabra may assert his constitutional claims as a
separate cause of action. Cf. Davis v. Passman, 442 U.S. 228,
242-44 (1979) (“[A] cause of action may be implied directly
under the equal protection component of the Due Process Clause
of the Fifth Amendment in favor of those who seek to enforce
this constitutional right.”). Accordingly, the Court has
subject-matter jurisdiction.
B. Sovereign Immunity
The Court next considers the issue of whether Mr. Sabra’s
claims are barred under the doctrine of sovereign immunity.
Under that doctrine, “the United States may not be sued without
its consent and that the existence of consent is a prerequisite
for jurisdiction.” Anderson v. Carter, 802 F.3d 4, 8 (D.C. Cir.
2015) (citation omitted). The Court has an independent
obligation to assure itself of its own jurisdiction, see Perry
Capital LLC v. Mnuchin, 864 F.3d 591, 619 (D.C. Cir. 2017), and
that “obligation extends to sovereign immunity because it is
‘jurisdictional in nature,’” id. (quoting FDIC v. Meyer, 510
U.S. 471, 475 (1994)).
42
The Secretary argues that “the APA is one of the only
statutes containing a waiver of the sovereign immunity of the
United States, providing a cause of action for individuals
aggrieved by agency actions to seek judicial review of final
agency decisions.” Def.’s Mem., ECF No. 18-1 at 23 (citing
Loeffler v. Frank, 486 U.S. 549, 554 (1988)). 9 The Secretary goes
on to argue that “the United States has waived its sovereign
immunity with respect to claims seeking a judicial declaration
of citizenship only in the specific circumstances in which
Congress elected to make such an action available in 8 U.S.C.
§ 1503, and not otherwise.” Def.’s Suppl. Mem., ECF No. 34 at 6.
The Secretary contends—and the Court agrees—that “[t]he
only plausible alternative source of a waiver of immunity is the
APA.” Id. at 9; see also Swan v. Clinton, 100 F.3d 973, 981
(D.C. Cir. 1996) (holding that 28 U.S.C. § 1331 does not
constitute a waiver of sovereign immunity). The waiver,
contained in the relevant section of the APA, provides:
An action in a court of the United States
seeking relief other than money damages and
stating a claim that an agency or an officer
9 The Secretary “understands [Mr. Sabra’s] Complaint to include
an APA claim.” Def.’s Mem., ECF No. 18-1 at 23 (“[T]he claims in
Plaintiff’s Complaint . . . sound under the APA.”). Mr. Sabra
argues—and the Court agrees—that the APA “is not relevant in
this case because [he] does not bring an APA claim.” Pl.’s
Opp’n, ECF No. 21 at 7. Mr. Sabra, as the master of the
complaint, did not assert claims under the APA. This Court will
not construe the operative complaint as asserting such a claim.
See generally Compl., ECF No. 1 at 13-18 ¶¶ 50-78.
43
or employee thereof acted or failed to act in
an official capacity or under color of legal
authority shall not be dismissed nor relief
therein be denied on the ground that it is
against the United States or that the United
States is an indispensable party.
5 U.S.C. § 702. “By its own terms, the waiver applies (1) when a
plaintiff claims that ‘an agency or an officer or employee
thereof acted or failed to act in an official capacity or under
color of legal authority,’ and (2) when the plaintiff ‘seek[s]
relief other than money damages.’” Mackinac Tribe v. Jewell,
87 F. Supp. 3d 127, 142 (D.D.C. 2015) (quoting 5 U.S.C. § 702),
aff’d, 829 F.3d 754 (D.C. Cir. 2016).
Here, Mr. Sabra challenges the Embassy’s refusal to issue
the CRBA and passport to Baby M, and Mr. Sabra seeks a
declaratory judgment. Mr. Sabra does not directly address the
Secretary’s arguments as to the sovereign immunity issue. See,
e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s Reply, ECF No. 23
at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9. In his
supplemental brief, however, Mr. Sabra cites Trudeau v. FTC,
456 F.3d 178, 187 (D.C. Cir. 2006) and Chacoty v. Pompeo, 392 F.
Supp. 3d 1, 12 (D.D.C. 2019) for the proposition that the
“waiver of sovereign immunity is not limited to APA claims.”
Pl.’s Suppl. Mem., ECF No. 30 at 9. The Secretary’s argument—
that the APA’s § 702’s waiver is inapplicable here because
“Plaintiff’s application has not yet been adjudicated, nor has
44
the time for its adjudication expired,” Def.’s Suppl. Mem., ECF
No. 34 at 10—has been foreclosed by D.C. Circuit precedent. See
Trudeau, 456 F.3d at 187 (holding that the waiver of sovereign
immunity “applies regardless of whether [the challenged agency
action] constitutes ‘final agency action’”). Moreover, the
Secretary does not dispute that the APA’s waiver of sovereign
immunity would apply to Mr. Sabra’s “claim for a freestanding
‘judgment and declaration that Baby M is entitled to U.S.
citizenship’” where the Embassy adjudicated the CRBA and
passport applications. Def.’s Suppl. Mem., ECF No. 34 at 10. It
is undisputed that the Embassy adjudicated those applications
and rendered a final decision in October 2019.
Although Mr. Sabra does not assert an APA claim, the APA
waives sovereign immunity for a suit brought under 28 U.S.C.
§ 1331 seeking equitable relief rather than monetary relief for
constitutional violations. “It is well-established that
sovereign immunity does not bar suits for specific relief
against government officials where the challenged actions of the
officials are alleged to be unconstitutional or beyond statutory
authority.” Clark v. Library of Congress, 750 F.2d 89, 102 (D.C.
Cir. 1984). “Federal courts have subject-matter jurisdiction
over suits seeking declaratory and injunctive relief because the
APA waives the federal agency’s sovereign immunity even when the
claim is one directly under the Constitution and not under the
45
APA.” Bolger v. District of Columbia, 510 F. Supp. 2d 86, 91
(D.D.C. 2007). Sovereign immunity is not an obstacle to
Mr. Sabra’s Fifth Amendment claims and request for a declaratory
judgment. The Court therefore finds that the doctrine of
sovereign immunity does not bar Mr. Sabra’s claims in Count I.
C. The Secretary Is Entitled to Summary Judgment as
to Count I
Mr. Sabra moves for summary judgment on the basis that he
is entitled to a declaration that Baby M is a U.S. citizen.
Pl.’s Mem., ECF No. 15-2 at 9l; see Compl., ECF No. 1 at 13-14
¶¶ 51-57. The Secretary moves for summary judgment, arguing that
there is no basis for a declaratory judgment in this case.
Def.’s Mem., ECF No. 18-1 at 31-33.
The DJA provides:
In a case of actual controversy within its
jurisdiction . . . any court of the United
States . . . may declare the rights and other
legal relations of any interested party
seeking such declaration, whether or not
further relief is or could be sought. Any such
declaration shall have the force and effect of
a final judgment or decree and shall be
reviewable as such.
28 U.S.C. § 2201(a) (emphasis added). The Supreme Court has
recognized that “[t]his text has long been understood ‘to confer
on federal courts unique and substantial discretion in deciding
whether to declare the rights of litigants.’” MedImmune, Inc. v.
Genentech, Inc., 549 U.S. 118, 136 (2007) (quoting Wilton v.
46
Seven Falls Co., 515 U.S. 277, 286 (1995)). For the reasons
explained below, the Court declines to exercise its discretion
under the DJA.
As a threshold matter, the DJA does not provide a cause of
action, Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011), and
the Act, by itself, is not an independent source of
jurisdiction, Lovitky v. Trump, 918 F.3d 160, 161 (D.C. Cir.
2019). As previously explained, however, Mr. Sabra may proceed
under the DJA because the independent basis of jurisdiction is
the Fifth Amendment. See Miers, 558 F. Supp 2d at 81-82.
Mr. Sabra asserts that the Embassy’s refusal to issue the CRBA
and U.S. passport to Baby M constitutes a violation of Baby M’s
fundamental rights to citizenship and travel under the Fifth
Amendment. Compl., ECF No. 1 at 14 ¶ 57. Mr. Sabra contends that
his due process claims “derive from the statutory rights of Baby
M to [U.S.] citizenship, because [Baby M] was born abroad to two
[U.S.] citizens.” Pl.’s Opp’n, ECF No. 21 at 9 (citing 8 U.S.C.
§ 1401(c)). Mr. Sabra argues that this “action for a declaratory
judgment is available as a remedy to secure a determination of
citizenship” because “[t]he court’s power to enjoin
unconstitutional acts by the government . . . is inherent in the
Constitution itself.” Pl.’s Suppl. Mem., ECF No. 30 at 5
(quoting Chacoty, 392 F. Supp. 3d at 11-12).
47
In response, the Secretary does not challenge this Court’s
authority to enjoin unconstitutional acts. Def.’s Suppl. Mem.,
ECF No. 34 at 7. But the Secretary notes that “[Mr. Sabra] is
not asking the Court to ‘enjoin an unconstitutional act.’” Id.
(quoting Pl.’s Suppl. Mem., ECF No. 30 at 5). Rather,
“[Mr. Sabra] is asking the Court to declare Baby M a [U.S.]
citizen.” Id. The Secretary argues that Mr. Sabra cannot ignore
the INA’s procedures set forth in 8 U.S.C. § 1503 that afford
Mr. Sabra with judicial relief in the form of a judicial
declaration of U.S. citizenship. See id. The Secretary contends
that Mr. Sabra’s request for a judicial declaration that Baby M
is a U.S. citizen “does not hold” because such “‘power to make
someone a citizen of the United States has not been conferred
upon the federal courts, like mandamus or injunction, as one of
their generally applicable equitable powers.’” Id. (quoting INS
v. Pangilinan, 486 U.S. 875, 883-84 (1988) (emphasis added)).
And the Secretary relies on Hizam v. Kerry, 747 F.3d 102, 110
(2d Cir. 2014), in which the Second Circuit made clear that
“[c]ourts cannot grant citizenship through their equitable
powers.” Def.’s Suppl. Mem., ECF No. 34 at 7 (quoting Hizam, 747
F.3d at 110). Mr. Sabra does not attempt to distinguish
Pangilinan or Hizam. See Pl.’s Reply, ECF No. 42 at 1-6. Before
turning to the parties’ arguments, the Court first analyzes
Mr. Sabra’s due process claims.
48
1. Mr. Sabra’s Due Process Claims
Under the Fifth Amendment, no person shall “be deprived of
life, liberty, or property, without due process of the law.”
U.S. Const. amend. V. To prevail on a due process claim, a
plaintiff must demonstrate three elements: (1) “deprivation of a
protected liberty or property interest,” (2) “by the
government,” (3) “without the process that is ‘due’ under the
Fifth Amendment.” NB ex rel. Peacock v. District of Columbia,
794 F.3d 31, 41 (D.C. Cir. 2015). The “plaintiff must show that
there was a cognizable liberty or property interest at stake.”
Smirnov v. Clinton, 806 F. Supp. 2d 1, 12 (D.D.C. 2011) (citing
Mathews v. Eldridge, 424 U.S. 319, 332 (1976)).
Mr. Sabra satisfies the first two elements because the
Supreme Court has recognized “[t]he right to travel is a part of
the ‘liberty’ of which the citizen cannot be deprived without
due process of law under the Fifth Amendment.” Kent v. Dulles,
357 U.S. 116, 125 (1958) (holding that the Secretary of State
was not authorized to deny passports to members of the Communist
Party). The denial of a passport deprives a U.S. citizen of the
right to international travel. See id.; see also Castro v.
Freeman, No. CIV.A. B-09-208, 2011 WL 11535494, at *12 (S.D.
Tex. Nov. 22, 2011) (finding that U.S. citizens “have due
process interests in their passports and the proper adjudication
of those passports”). But the right of international travel is
49
“no more than an aspect of the ‘liberty’ protected by the Due
Process Clause of the Fifth Amendment . . . [that] can be
regulated within the bounds of due process.” Califano v.
Aznavorian, 439 U.S. 170, 176 (1978).
The Fifth Amendment’s “due process guarantee has both
procedural and substantive components.” Jacinto-Castanon de
Nolasco v. U.S. Immigration & Customs Enf’t, 319 F. Supp. 3d
491, 499 (D.D.C. 2018). Because Mr. Sabra does not indicate
whether the denial of the CRBA and passport applications
constitutes a violation of procedural or substantive due
process, see, e.g., Pl.’s Mem., ECF No. 15-2 at 5; Pl.’s Opp’n,
ECF No. 21 at 9; Pl.’s Reply, ECF No. 23 at 10-13, the Court
analyzes both components.
a. Procedural Due Process
“Under procedural due process, the government is required
to provide individuals with certain procedural rights before it
may deprive them of life, liberty, or property.” Barnes v.
District of Columbia, 793 F. Supp. 2d 260, 275 n.11 (D.D.C.
2011) (citing Mathews, 424 U.S. at 332–33); see also Armstrong
v. Manzo, 380 U.S. 545, 552 (1965) (“A fundamental requirement
of due process is ‘the opportunity to be heard.’ It is an
opportunity which must be granted at a meaningful time and in a
meaningful manner.”). “Due process is flexible and calls for
such procedural protections as the particular situation
50
demands.” Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer,
408 U.S. 471, 481 (1972)).
Here, Mr. Sabra does not argue that the Embassy failed to
provide him with an opportunity to be heard “at a meaningful
time and in a meaningful manner.” Armstrong, 380 U.S. at 552.
Neither does Mr. Sabra challenge the applicable statutes or
regulations governing the issuance of CRBAs and passports. See,
e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s Reply, ECF No. 23
at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9. Mr. Sabra does
not contend that the Embassy did not give him an opportunity to
object to the Embassy’s adjudication of the CRBA and passport
applications or contest the Embassy’s decision to deny the
applications. See, e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s
Reply, ECF No. 23 at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9.
Nor could Mr. Sabra make such arguments on the current record.
Before adjudicating the applications, the Embassy extended the
deadline for Mr. and Mrs. Sabra to submit additional evidence
until September 13, 2019. Pl.’s SOMF, ECF No. 21-2 at 8. After
litigation had already begun, the Embassy extended the deadline
for additional documentation until October 15, 2019. Joint
Status Report, ECF No. 51 at 2.
The Embassy offered Mr. and Mrs. Sabra a November 2019
appointment at Erez Crossing prior to adjudicating the
applications. Id. at 1. Mr. and Mrs. Sabra declined that
51
invitation. Id. at 1-2. Thereafter, the Embassy provided Mr. and
Mrs. Sabra with written notification denying the CRBA and
passport applications, see 22 C.F.R. § 51.65, by issuing the
final decision on October 22, 2019, Final Decision, ECF No. 55-1
at 2. In rendering the decision, the Embassy stated that the
State “Department reviewed and considered all submissions in
support of the pending applications made to the U.S. Embassy . .
. and as part of the pending litigation in [this case].” Id.
The Secretary points out that “an individual has no right,
clear or otherwise, to be issued a U.S. passport—and the
Secretary of State has no duty to issue one—unless he [or she]
complies with the controlling rules and regulations and
established that that he [or she] meets the requirements.”
Def.’s Opp’n, ECF No. 28 at 8. According to the Secretary,
“[Mr. Sabra] has not complied with all of these requirements.”
Id. at 9. For instance, it is undisputed that Baby M did not
attend the interview with Mrs. Sabra and Vice-Consul Woda at
Erez Crossing on June 12, 2019. Pl.’s SOMF, ECF No. 21-1 at 2.
Section 51.28(a) requires the personal appearance of a minor
under the age of sixteen “unless the personal appearance is
specifically excused by a senior passport officer, pursuant to
guidance issued by the Department.” 22 C.F.R. § 51.28(a).
Mr. Sabra points out that the FAM permits an exception for
emergency circumstances, Pl.’s SOMF, ECF No. 21-1 at 2-3, but
52
the consular officer decides whether to exercise his or her
discretion to waive the personal appearance requirement, id. And
Vice-Consul Woda did not excuse Baby M’s personal appearance.
Id.; see also Woda Decl., ECF No. 18-3 at 2 ¶ 9. Furthermore,
Mr. and Mrs. Sabra did not present Baby M for a subsequent
interview with the Embassy in November 2019 at Erez Crossing
following the stabilization of Baby M’s health condition. See
Joint Status Report, ECF No. 51 at 2.
Because the Embassy afforded Mr. and Mrs. Sabra with a
meaningful opportunity to contest the Embassy’s refusal to issue
the CRBA and passport to Baby M, the Court therefore finds that
Mr. Sabra fails to demonstrate that the Embassy’s actions did
not comport with procedural due process.
b. Substantive Due Process
“Substantive due process bars government interference with
certain fundamental rights ‘regardless of the fairness of the
procedures used to implement them.’” Jacinto-Castanon de
Nolasco, 319 F. Supp. 3d at 499 (quoting Daniels v. Williams,
474 U.S. 327, 331 (1986)). “There are two strands of the
substantive due process doctrine.” Id. (citation and internal
quotation marks omitted). “The first strand protects rights that
are ‘fundamental,’ whereas the second ‘protects against the
exercise of governmental power that shocks the conscience.’” Id.
(citation omitted); see also Cty. of Sacramento v. Lewis, 523
53
U.S. 833, 849 (1998) (explaining that “conduct intended to
injure in some way unjustifiable by any government interest is
the sort of official action most likely to rise to the
conscience-shocking level”).
The Court assumes that Mr. Sabra invokes the “fundamental”
rights strand of substantive due process because Mr. Sabra does
not argue that the Embassy’s actions rise to the level of
shocking the conscience. See Jacinto-Castanon de Nolasco, 319 F.
Supp. 3d at 499. Assuming, without deciding, that Baby M is a
U.S. citizen, the Embassy’s denial of Baby M’s CRBA and passport
applications restricted her right to international travel. Such
a right is not equivalent to the fundamental right of interstate
travel, however. See, e.g., Haig, 453 U.S. at 306–07; Weinstein
v. Albright, 261 F.3d 127, 140 (2d Cir. 2001) (“Plaintiff’s
right to a passport and to travel internationally, while a
liberty interest protected by the Due Process Clause of the
Fifth Amendment, is not a fundamental right equivalent to the
right to interstate travel.”). As the D.C. Circuit has
explained, “international travel is no more than an aspect of
liberty that is subject to reasonable government regulation
within the bounds of due process, whereas interstate travel is a
fundamental right subject to a more exacting standard.” Hutchins
v. District of Columbia, 188 F.3d 531, 537 (D.C. Cir. 1999)
(citing Haig, 453 U.S. at 306–07). As a matter of law, the right
54
to international travel is not a fundamental one. Haig, 453 U.S.
at 306-07.
Mr. Sabra’s remaining claim is that the Embassy’s failure
to issue Baby M’s CRBA and passport constitutes a violation of
Baby M’s “fundamental” right to citizenship. See Compl., ECF No.
1 at 14 ¶ 57. In dicta, the Supreme Court has discussed the “the
fundamentality of citizenship.” Tuaua v. United States, 951 F.
Supp. 2d 88, 95 n.11 (D.D.C. 2013) (citing Trop v. Dulles, 356
U.S. 86, 103 (1958) (plurality opinion); Afroyim v. Rusk, 387
U.S. 253, 267-68 (1967)), aff’d, 788 F.3d 300 (D.C. Cir. 2015).
“When the Government acts to take away the fundamental right of
citizenship, the safeguards of the Constitution should be
examined with special diligence.” Trop, 356 U.S. at 103; see
also Afroyim, 387 U.S. at 267-68 (“Citizenship is no light
trifle to be jeopardized any moment Congress decides to do so
under the name of one of its general or implied grants of
power.”). Mr. Sabra does not cite any case law for the
proposition that citizenship is a fundamental right. See Pl.’s
Opp’n, ECF No. 21 at 9-10. As such, Mr. Sabra has failed to
establish a fundamental right to citizenship. To the extent
Mr. Sabra asserts a violation of substantive due process,
Mr. Sabra has not established that the government infringed on a
“fundamental” right.
55
Even assuming, arguendo, that Mr. Sabra established a due
process violation, Mr. Sabra does not provide a basis for a
declaratory judgment on the current record. Seeking a judicial
declaration of U.S. citizenship, Mr. Sabra argues that his due
process claims derive from Baby M’s rights to U.S. citizenship
under 8 U.S.C. § 1401(c). Pl.’s Opp’n, ECF No. 21 at 9. In
Mr. Sabra’s view, Baby M automatically became a U.S. citizen at
birth because Section 1401(c) makes clear that a person “shall”
be a citizen at birth where: “a person born outside of the
United States . . . of parents both of whom are citizens of the
United States and one of whom has had a residence in the United
States . . ., prior to the birth of such person.” Pl.’s Mem.,
ECF No. 15-2 at 7 (quoting 8 U.S.C. § 1401(c)). Mr. Sabra
contends that Section 1401(c) does not require proof of a “blood
relationship” between the child and the U.S. citizen parents.
Id. Mr. Sabra relies on Miller v. Albright, 523 U.S. 420 (1998)
for the proposition that a “blood relationship to the birth
mother is immediately obvious and is typically established by
hospital records and birth certificates.” Id. at 8 (quoting
Miller, 523 U.S. at 436).
The State Department has interpreted 8 U.S.C. §§ 1401 and
1409 to require proof of a biological parent-child relationship.
See, e.g., Def.’s Opp’n, ECF No. 28 at 18 (citing 8 FAM § 301.4-
1(B)); Def.’s Suppl. Mem., ECF No. 34 at 23 (arguing that “[t]he
56
phrase ‘born . . . of parents’ as set forth in Section 1401(c)
(emphasis added) has an inherently biological connotation”). The
FAM states that “[a]bsent a blood relationship between the child
and the parent on whose citizenship the child’s own claim is
based, U.S. citizenship is not acquired.” 8 FAM § 301.4-
1(D)(1)(a). In addition, the FAM provides: “Children born in
wedlock are generally presumed to be the issue of that marriage.
This presumption is not determinative in citizenship cases,
however, because an actual biological relationship to a U.S.
citizen parent is required.” 8 FAM § 301.4-1(D)(1)(d).
According to the Secretary, “the State Department applies a
preponderance-of-the-evidence standard, in which ‘evidence of
blood relationship is of greater weight than the evidence to the
contrary.’” Def.’s Mem., ECF No. 18-1 at 18 (quoting 8 FAM
§ 301.4-1(D)(b)(2)). The Secretary explains that the origins of
the “biological requirement” in the FAM are rooted in “the
traditional Roman Civil Law concept of jus sanguinis,” and the
State Department’s longstanding “understanding” of the blood
requirement “is evidenced by archival copies of the [FAM] from
the early 1970s, as well as earlier guidance sent to diplomatic
posts in the 1960s and reflects the biological and social
realities of the era predating the rise of assisted reproductive
technology.” Def.’s Suppl. Mem., ECF No. 34 at 20.
57
The historical underpinnings of the FAM do not persuade
this Court that Section 1401(c) requires proof of a biological
relationship. Cf. Jaen v. Sessions, 899 F.3d 182, 190 (2d Cir.
2018) (concluding that “a blood relationship is not required to
establish parentage for purposes of acquired citizenship when
the child is born into marriage”). Indeed, courts have rejected
the Secretary’s interpretation that the phrase “born . . . of
parents” in Section 1401 requires a “biological” or “blood”
relationship between a child and a U.S. citizen parent for
purposes of citizenship. E.g., Scales v. INS, 232 F.3d 1159,
1164 (9th Cir. 2000) (holding that “[a] straightforward reading
of § 1401 indicates . . . that there is no requirement of a
blood relationship”); Dvash-Banks v. Pompeo, No. CV 18-523-
JFW(JCX), 2019 WL 911799, at *7 (C.D. Cal. Feb. 21, 2019)
(same), appeal filed, No. 19-55517 (9th Cir. May 6, 2019); cf.
Mot. Hr’g Tr. at 6-7, 34, 38, Blixt v. U.S. Dep’t of State, Civ.
Action No. 18-124 (D.D.C. May 21, 2019), ECF No. 38 (Sullivan,
J.) (denying the State Department’s motion to dismiss).
The D.C. Circuit has indicated that “informal documents”
like the FAM and the State Department’s Foreign Affairs Handbook
are distinct from “rules or regulations” accorded deference
under Chevron U.S.A. Inc. v. Natural Resources Defense Council,
Inc., 467 U.S. 837 (1984). Miller v. Clinton, 687 F.3d 1332,
1341 (D.C. Cir. 2012); see also Dvash-Banks, 2019 WL 911799, at
58
*5 (“The FAM represents the State Department’s unilateral
declarations and is not the product of a formal adjudication or
notice-and-comment rulemaking or congressional action.”). The
Secretary argues—and the Court disagrees—that “[t]he State
Department’s interpretation of the INA provisions governing
acquisition of U.S. citizenship abroad . . . should thus be
given deference.” Def.’s Suppl., ECF No. 34 at 26 (citing
Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
The State Department’s interpretation of the relevant INA
provisions lacks the “power to persuade” under Skidmore’s less
deferential standard because the plain language of 8 U.S.C.
§ 1401 does not require proof of a “biological relationship”
between the child born abroad to married U.S. citizen parents.
Skidmore, 323 U.S. at 140. This Court joins the other courts in
declining to defer to the FAM. See, e.g., Jaen, 899 F.3d at 187
n.4; Scales, 232 F.3d at 1165–66; Chacoty, 392 F. Supp. 3d at
15. To the extent the Embassy required Mr. and Mrs. Sabra to
prove a blood or biological relationship, see Pl.’s Ex. E, ECF
No. 3 at 49, such evidence is not required under Section
1401(c), see 8 U.S.C. § 1401(c). 10
10Having found that Section 1401(c) does not require a
“biological relationship,” see 8 U.S.C. § 1401(c), the Court
finds as moot Mr. Sabra’s request for a judicial declaration
that “he and his wife have sufficiently proven the biological
relationship between themselves and Baby M.” Compl., ECF No. 1
at 13 ¶ 51. For the same reasons, the Court need not address
59
That being said, the Court agrees with the Secretary that
the Embassy’s “demand here” for additional information was
“sensible even if there were no biological-relationship
requirement.” Def.’s Suppl. Mem., ECF No. 34 at 27. Congress
granted the Secretary with the authority to determine the
citizenship of a person not in the United States. 8 U.S.C.
§ 1104. Mr. Sabra bears the burden of demonstrating that Baby M
is a U.S. citizen, see 22 C.F.R. § 51.40, and Mr. Sabra “must
provide documentary evidence that [Baby M] is a U.S. citizen,”
id. § 51.41 (emphasis added). And Mr. Sabra “shall be required
to submit proof of the child’s birth, identity and citizenship
meeting the evidence requirements” in order for Baby M to
receive a CRBA and U.S. passport. 22 C.F.R. § 50.5 (emphasis
added). In the absence of “satisfactory proof of birth, identity
and nationality,” the consular officer retains the discretion to
deny the CRBA and passport to the parent or legal guardian.
22 C.F.R. § 50.7(a) (emphasis added). The applicable statutes or
regulations do not require the State Department to accept
documents as proof of birth, identity, and citizenship if those
documents raise concerns of authenticity and reliability.
Mr. Sabra’s argument that the Embassy improperly applied a
“clear and convincing evidence” standard for proof of the
biological relationship. See Pl.’s Opp’n, ECF No. 21 at 8-9.
60
On the current record, the Court is not persuaded that the
Embassy’s request for additional documentation runs afoul of due
process given that the State Department may request additional
evidence for proof of citizenship. See, e.g., 22 C.F.R. § 51.45;
22 C.F.R. § 51.23(c). After reviewing Mr. and Mrs. Sabra’s
submissions and the filings in this case in support of the CRBA
and passport applications, the Embassy determined that Mr. Sabra
failed to present satisfactory proof of Baby M’s birth,
identity, and citizenship. See Final Decision, ECF No. 55-1 at
2. It is true that “an authentic copy of the record of the birth
filed with local authorities” typically qualifies as proof of
the child’s birth. 22 C.F.R. § 50.5(a). It is undisputed that
Mrs. Sabra submitted to the Embassy “Baby M’s official
Palestinian birth certificate.” Pl.’s Opp’n, ECF No. 19 at 11.
Mr. Sabra argues that the State Department’s regulations advise
that the Embassy should accept the Palestinian birth certificate
“[e]ven in an instance of suspected fraud.” Id. at 15. Mr. Sabra
goes on to argue that “there is no deceit, or drama, or
detective work needed” here because “there are simply two U.S.
citizens seeking to care for their ill and minor child, born of
their marriage and statutorily entitled to her rights of U.S.
citizenship.” Id.
The Secretary does not dispute that Mr. and Mrs. Sabra are
U.S. citizens, and that Mr. Sabra “had a residence in the United
61
States” before Baby M’s birth. Def.’s Suppl. Mem., ECF No. 34 at
17 (quoting 8 U.S.C. § 1401(c)). The Secretary acknowledges that
“a birth certificate can usually [be] accepted as primary
evidence of parentage where there are no indicia of potential
fraud and no contradictory evidence or information.” Def.’s
Opp’n, ECF No. 28 at 15-16. The Secretary points out that the
Palestinian birth certificate was “issued more than a month
after [Baby M’s] alleged date of birth,” id. at 15, but the
relevant regulation that applies to persons born outside of the
United States does not provide a reasonable timeframe for the
issuance of a birth certificate, see 22 C.F.R. § 50.5(a).
Nonetheless, the Secretary points out that Vice-Consul Woda
could not verify the information contained in the Palestinian
birth certificate as it is a document issued by the Hamas-
affiliated Ministry of the Interior, and Hamas is a designated
Foreign Terrorist Organization. Def.’s Suppl. Mem., ECF No. 34
at 27.
Mr. Sabra’s argument—that the Embassy should accept the
Palestinian birth certificate as evidence of Baby M’s birth,
identity, and citizenship—is unavailing. Putting aside Vice-
Consul Woda’s concerns with the Palestinian birth certificate,
Mr. Sabra fails to acknowledge the State Department’s discretion
to require additional evidence as proof of birth, identity, and
citizenship. See, e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s
62
Reply, ECF No. 23 at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9.
Section 51.23(c) provides that the State Department “may”
require a passport applicant to provide “additional evidence of
identity as it deems necessary.” 22 C.F.R. § 51.23(c). The same
is true for additional evidence of U.S. citizenship. See 22
C.F.R. § 51.45. Indeed, the Embassy found it necessary to
request additional evidence. See Def.’s Suppl. Mem., ECF No. 34
at 27.
The Court cannot ignore that Mr. Sabra has failed to
provide critical information, specifically Baby M’s written
medical records to substantiate Baby M’s birth and health
condition. Plaintiff’s counsel stated on the record that “[she]
haven’t seen the medical records.” Mot. Hr’g Rough Tr. (Aug. 16,
2019) at 105. Mr. and Mrs. Sabra declined the State Department’s
invitation to enlist the services of the medical doctor
practicing in Gaza who has previously contracted with the
Embassy to perform a medical examination and issue a written
report. See Def.’s Status Report, ECF No. 40 at 1-4. Dr.
[REDACTED] describes Baby M’s condition in general terms, see
Sealed [REDACTED] Decl., ECF No. 3 at 21, but Dr. [REDACTED]’s
declaration is not accompanied by supporting written medical
records, see Def.’s Reply, ECF No. 29 at 14. The Secretary
correctly points out that Dr. [REDACTED]’s declaration is
“written in English and contains no indication that it was
63
translated from Arabic.” Def.’s Opp’n, ECF No. 28 at 16. But it
is undisputed that Vice-Consul Woda used a translator to speak
with Dr. [REDACTED] on July 1, 2019, because Dr. [REDACTED] does
not speak English. Id. Furthermore, Dr. [REDACTED] “declare[s]
under penalty of perjury that the foregoing is true and correct
based on [his] personal knowledge,” Sealed [REDACTED] Decl., ECF
No. 3 at 21, but Dr. [REDACTED]’s declaration fails to comply
with 28 U.S.C. § 1746, see id. 11
The Pediatric Admission Form is problematic because it is
not accompanied by any written medical records and there is no
indication whether a medical provider generated the form. Def.’s
Ex. 6, ECF No. 28-2 at 3. The Pediatric Admission Form states
that Baby M was “referred from Al Durra Hospital” with a certain
condition, and “[p]resented to Al Durra Hospital” with
respiratory distress. Id. According to Vice-Consul Woda, the
11Section 1746(1) provides specific language for declarations:
“If executed without the United States: ‘I declare (or certify,
verify, or state) under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.
Executed on (date). (Signature)’.” 28 U.S.C. § 1746(1) (emphasis
added). “Under this statute, any declaration executed outside of
the United States must state either that it is made ‘under
penalty of perjury under the laws of the United States of
America’ or a substantially similar form.” In re Korean Air
Lines Co., Ltd. Antitrust Litig., No. CV0705107SJOAGRX, 2013 WL
12216516, at *2 (C.D. Cal. Dec. 6, 2013). In this case,
Dr. [REDACTED] executed the declaration outside of the United
States, Pl.’s SOMF, ECF No. 21-2 at 6, and Mr. Sabra did not
file an amended declaration on behalf of Dr. [REDACTED] to
comply with 28 U.S.C. § 1746. See generally Docket for Civ.
Action No. 19-2090.
64
Pediatric Admission Form does not contain Baby M’s “diagnosis or
treatment from either hospital.” Woda Suppl. Decl., ECF No. 28-2
at 1 ¶ 6. With the exception of Baby M’s name, the header, and
the address, the Pediatric Admission Form is written in English.
Def.’s Ex. 6, ECF No. 28-2 at 3. Vice-Consul Woda “concluded
from this that the [Pediatric Admission Form] was prepared
specifically for presentation to the Embassy rather than in the
regular course of [Baby M’s] medical treatment.” Woda Suppl.
Decl., ECF No. 28-2 at 1 ¶ 4.
Mr. Sabra did not attach the Pediatric Admission Form as an
exhibit to the complaint. See generally Compl., ECF No. 1. After
the Secretary attached the Pediatric Admission Form to Vice-
Consul Woda’s supplemental declaration, see Def.’s Ex. 6, ECF
No. 28-2 at 3, Mr. Sabra subsequently filed a declaration from
Mrs. Sabra with the Pediatric Admission Form as an exhibit, see
Pl.’s Ex. L, ECF No. 52-2 at 16. According to Mrs. Sabra, “[Baby
M] was diagnosed with “[REDACTED].” P. Sabra Decl., ECF No. 52-2
at 4 ¶ 26. Mrs. Sabra avers that the form was created on June 9,
2019 in her presence for Baby M’s admission to Al Shifa
hospital, id., and she was not given any medical records, id. at
4 ¶ 27. It is not apparent whether a medical provider generated
the form. See Pl.’s Ex. L, ECF No. 52-2 at 16.
In his reply brief, Mr. Sabra does not address the issues
raised by Vice-Consul Woda with respect to the Pediatric
65
Admission Form. See Pl.’s Reply, ECF No. 23 at 20. Rather,
Mr. Sabra argues that Vice-Consul Woda’s supplemental
declaration violates the so-called “sham affidavit rule,” id.,
which “precludes a party from creating an issue of material fact
by contradicting prior sworn testimony unless the shifting party
can offer persuasive reasons for believing the supposed
correction is more accurate than the prior testimony,” Galvin v.
Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (citation
and internal quotation marks omitted). “[F]or the doctrine to
apply, ‘the affidavit must clearly contradict prior sworn
testimony, rather than clarify confusing or ambiguous
testimony.’” St. Paul Mercury Ins. Co. v. Capitol Sprinkler
Inspection, Inc., 573 F. Supp. 2d 152, 160–61 (D.D.C. 2008)
(quoting Hinch v. Lucy Webb Hayes Nat. Training Sch., 814 A.2d
926, 930 (D.C. 2003) (emphasis added)).
Here, Mr. Sabra argues that the Secretary fails to provide
a “compelling reason” for Vice-Consul Woda’s “contradictions or
original failure to provide the Pediatric Admission Form.” Pl.’s
Reply, ECF No. 23 at 20. The Secretary concedes Mr. Sabra’s
argument by not responding to it. See Def.’s Reply, ECF No. 29
at 5-20. Nonetheless, Mr. Sabra fails to point to what specific
averments in Vice-Consul Woda’s first declaration clearly
contradict his statements in the supplemental declaration. See
Pl.’s Reply, ECF No. 23 at 20. Mr. Sabra appears to take issue
66
with Vice-Consul Woda’s amendment as to whether he retained the
Pediatric Admission Form after the June 12, 2019 interview with
Mrs. Sabra. See id. In his first declaration, Vice-Consul Woda
avers that the Pediatric Admission Form was “not retained.” Woda
Decl., ECF No. 18-3 at 2 ¶ 9 (emphasis added). In his
supplemental declaration, however, Vice-Consul Woda declares
that “[he] subsequently recalled that [he] took a photograph of
that document, a true and correct copy of which is attached as
Exhibit 6.” Woda Suppl. Decl., ECF No. 28-2 at 1 ¶ 3. Vice-
Consul Woda does not aver that he retained a physical copy of
the Pediatric Admission Form. See id.
Having reviewed Vice-Consul Woda’s declarations, the Court
disagrees that the new information warrants a finding that Vice-
Consul Woda’s supplemental declaration is a “sham affidavit.” As
the D.C. Circuit has explained, the sham affidavit rule can be
misapplied where a “supplemental declaration presented new
information rather than contradictory information.” U.S. Dep’t
of Justice v. Daniel Chapter One, 650 F. App’x 20, 25 (D.C. Cir.
2016). Vice-Consul Woda provided new information in the form of
a photograph of the Pediatric Admission Form to support his
supplemental declaration. See Woda Suppl. Decl., ECF No. 28-2 at
1 ¶ 3. Even if the Court deemed Vice-Consul Woda’s supplemental
declaration as a “sham affidavit,” the Court could consider the
Pediatric Admission Form because that document is attached as an
67
exhibit to Vice-Consul Woda’s supplemental declaration and Mrs.
Sabra’s declaration. Compare Def.’s Ex. 6, ECF No. 28-2 at 3,
with Pl.’s Ex. L, ECF No. 52-2 at 16. Mr. Sabra does not oppose
the introduction of the Pediatric Admission Form. See Pl.’s
Reply, ECF No. 23 at 20. Even if the Court did not consider
Vice-Consul Woda’s supplemental declaration, the issues with the
Pediatric Admission Form remain the same.
The current record contains the following inconsistencies
that support the Embassy’s final decision that Mr. and Mrs.
Sabra’s submissions are insufficient proof of Baby M’s birth,
identity, and citizenship: (1) Mr. Sabra avers that Baby M
“[REDACTED],” Decl. of Mohammed Sabra (“M. Sabra Decl.”), ECF
No. 21-1 at 2 ¶ 9, but the Pediatric Admission Form clearly
states that [REDACTED],” Def.’s Ex. 6, ECF No. 28-2 at 3;
(2) Mr. Sabra’s Statement of Material Facts provides that “Dr.
[REDACTED] delivered Baby M at her birth,” Pl.’s Reply to Def.’s
Counterstatement to Pl.’s SOMF, ECF No. 23-2 at 4 ¶ 12, but Mrs.
Sabra avers that “Dr. [REDACTED] arrived moments after [Baby M]
was born,” P. Sabra Decl., ECF No. 52-2 at 3 ¶ 19, and it is
undisputed that Dr. [REDACTED] did not witness Baby M’s birth,
Pl.’s SOMF, ECF No. 21-2 at 7; and (3) the “discharge record”
has the handwritten words “Private Clinic” in Arabic over
whiteout as Baby M’s place of birth, Pl.’s Ex. F, ECF No. 3 at
51-52, but Mrs. Sabra avers that Baby M was born at home, P.
68
Sabra Decl., ECF No. 52-2 at 3 ¶ 18. The Secretary correctly
points out that “[n]othing the Sabras provided to the Embassy or
the Court prior to [Mr. Sabra’s] opposition papers . . .
reflected a home birth.” Def.’s Rely, ECF No. 29 at 11.
The Court is troubled by Mr. Sabra’s failure to explain
the lack of travel arrangements or plans in the current record
for follow-up medical treatment in the United States given that
Mr. Sabra asserts there is a need for Baby M’s urgent medical
treatment in the United States. See Pl.’s Mem., ECF No. 15-2 at
3. Dr. [REDACTED], one of the medical providers for Baby M,
“[REDACTED].” [REDACTED] Decl., ECF No. 3 at 21 ¶ 8. According
to Dr. [REDACTED], the hospital where Baby M was located “simply
does not have the resources or equipment available to provide
[Baby M’s] medical needs.” Id.; see also P. Sabra Decl., ECF No.
52-2 at 4 ¶ 28 (“The doctors at Al Shifa recommended we get
[Baby M] better treatment in the United States.”). Mr. Sabra
avers that “[w]e just want to bring our daughter [Baby M] home
to the United States, and get her the best medical treatment we
can.” M. Sabra Decl., ECF No. 21-1 at 5 ¶ 15; see also M. Sabra
Suppl. Decl., ECF No. 23-2 at 2 ¶ 12 (“As I stated earlier, [we]
want to bring our daughter home to the United States, and get
her the best medical treatment we can.”).
The current record is devoid of any travel plans to nearby
countries with ample resources and the necessary equipment for
69
Baby M’s urgent medical treatment. See Def.’s Reply, ECF No. 29
at 14. The Secretary correctly points out that Mr. Sabra’s
averment, see M. Sabra Decl., ECF No. 21-1 at 5 ¶ 15, is
“inconsistent” with “the fact that the Sabras have been unable
to demonstrate any plan for safely transporting [Baby M] to the
United States or for any medical follow up that has been
scheduled with medical providers in the United States.” Def.’s
Reply, ECF No. 29 at 14. It is undisputed that the Embassy
offered to assist Mr. and Mrs. Sabra with obtaining permits to
enter Israel for Baby M’s medical treatment there, and that the
Sabra family declined the Embassy’s offer. See, e.g., Woda
Decl., ECF No. 18-3 at 4 ¶ 16; Pl.’s SOMF, ECF No. 21-2 at 5-6.
Mr. and Mrs. Sabra did not apply for Baby M’s humanitarian
(medical) parole with USCIS, which would have been another
avenue to gain entry into the United States for Baby M’s medical
treatment. Joint Status Report, ECF No. 32 at 3-4.
* * *
Under the unique facts and circumstances of this case, the
Court finds that Mr. Sabra has failed to provide sufficient
documentation as proof of Baby M’s birth, identity and
citizenship, as required by the applicable statutes and
regulations. What is more, Mr. Sabra does not address the
Supreme Court precedent that instructs that federal courts may
not declare a person a citizen under its equitable powers. See
70
Def.’s Suppl. Mem., ECF No. 34 at 7 (citing Pangilinan, 486 U.S.
at 883-84); see also Pl.’s Reply, ECF No. 42 at 1-6.
Accordingly, the Court DENIES Mr. Sabra’s motion for summary
judgment and GRANTS the Secretary’s motion for summary judgment
as to Count I. 12
D. The Secretary Is Not Entitled to Summary Judgment
as to Count IV
Mr. Sabra alleges that the Embassy’s failure to issue a
CRBA and U.S. passport to Baby M violates his “rights to free
exercise of religion” under RFRA. Compl., ECF No. 1 at 18 ¶ 78.
The Secretary moves for summary judgment on Mr. Sabra’s RFRA
claim, Def.’s Mem., ECF No. 18-1 at 27-29, but Mr. Sabra does
not move for summary judgment on his RFRA claim, see Pl.’s Mem.,
ECF No. 15-2 at 3-11. 13
12The Secretary’s argument—that Mr. Sabra must exhaust his
administrative remedies under 8 U.S.C. § 1503 before bringing
his claims in this action, see Def.’s Reply, ECF No. 29 at 6-7—
is unavailing. The Secretary cites no controlling authority for
the proposition that a plaintiff must pursue Section 1503 claims
before asserting stand-alone due process claims. See Def.’s
Suppl. Mem., ECF No. 34 at 14. Mr. Sabra may take advantage of
the INA’s enumerated procedures under 8 U.S.C. § 1503. But, as
the master of his complaint, Mr. Sabra did not assert a Section
1503 claim. See generally Compl., ECF No. 1 at 13-18 ¶¶ 50-78.
13The Court rejects Mr. Sabra’s argument—that the RFRA claim “is
not part of what [he] sought to have expedited,” Pl.’s Opp’n,
ECF No. 21 at 7—because the Court adopted in part the parties’
expedited cross-motions for summary judgment briefing schedule
on the claims in the complaint. See Min. Entry of Aug. 2, 2019;
see also Joint Status Report, ECF No. 14 at 1-2 ¶ 4 (“On August
2, 2019, undersigned counsel for Defendant called counsel for
Plaintiff to propose an expedited briefing schedule on the
merits of the Complaint in exchange for Plaintiff agreeing to
71
Congress enacted RFRA in 1993 to “provide greater
protection for religious exercise than is available under the
First Amendment.” Holt v. Hobbs, 135 S. Ct. 853, 859-60 (2015).
RFRA provides that the “[g]overnment shall not substantially
burden a person’s exercise of religion even if the burden
results from a general rule of applicability,” unless the
government “demonstrates that application of the burden . . .
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling
governmental interest.” 42 U.S.C. § 2000bb–1(a), (b). Any
“person whose religious exercise has been burdened in violation
of [the statute] may assert that violation as a claim or defense
in a judicial proceeding and obtain appropriate relief against
[the] government.” 42 U.S.C. § 2000bb–1(c).
“A person who brings a challenge under RFRA bears the
initial burden of proving that (1) the Government’s policy or
action implicates her religious exercise, (2) the relevant
religious exercise is grounded in a sincerely held religious
belief, and (3) the policy or action substantially burdens that
exercise.” Standing Rock Sioux Tribe v. U.S. Army Corps of
Engineers, 239 F. Supp. 3d 77, 88 (D.D.C. 2017). If the person
withdraw his emergency motion. The parties agreed, and therefore
propose to the Court that the parties file cross motions for
summary judgment on August 12, 2019, and that written
oppositions/replies be waived.”) (emphasis added).
72
establishes a prima facie RFRA violation, then the burden shifts
to the government to demonstrate that the government interest is
compelling, and its action is the least restrictive means. Id.
The Court first analyzes whether Mr. Sabra satisfies his initial
burden, concluding that the evidence demonstrates that the
Embassy imposed a substantial burden on the religious exercise
of Mr. and Mrs. Sabra.
1. Religious Exercise
Congress has defined the term “religious exercise” to mean
“any exercise of religion, whether or not compelled by, or
central to, a system of religious belief.” 42 U.S.C. § 2000cc–
5(7)(A), incorporated by 42 U.S.C. § 2000bb–2(4); see also
Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001)
(explaining that RFRA incorporates the definition from the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C.
§ 2000cc et seq.). Here, Mr. and Mrs. Sabra have expressed their
religious beliefs under Islamic tenets, see Pl.’s Opp’n, ECF No.
21 at 7, and Mrs. Sabra is a practicing Muslim, Pl.’s SOMF, ECF
No. 21-2 at 6.
Mr. Sabra alleges that “[s]ignificant portions of the
unnecessary evidence requested by the Embassy, most notably a
DNA test and photos of [Mrs.] Sabra during pregnancy, conflict
with [Mr. and Mrs. Sabra’s] already articulated sincerely held
religious beliefs.” Compl., ECF No. 1 at 18 ¶ 78. Mr. Sabra
73
asserts that “[c]ontinued insistence on the provision of
additional redundant evidence, requiring [Mr. and Mrs. Sabra] to
choose between providing that evidence or adhering to their
sincerely held religious beliefs, violates RFRA.” Id. The Court
notes that Plaintiff’s counsel stated on the record that
Mr. Sabra has a “strong religious hesitation” to DNA testing,
whereas Mrs. Sabra has an “absolute religious objection” to the
DNA testing of Baby M. Mot. Hr’g Rough Tr. (Aug. 16, 2019) at
104; see also id. at 7 (stating that Mrs. Sabra has “strong
objections based on religion but also as to [Baby M’s] safety”).
With respect to the photographs, Plaintiff’s counsel confirmed
that there are two photographs of Mrs. Sabra during the
pregnancy, but Mr. and Mrs. Sabra refuse to provide those
photographs to the Embassy based on religious objections. Id. at
75. The basis for Mr. and Mrs. Sabra’s objections is that the
photographs are “very personal,” they were “taken in an intimate
in-house setting with just the family,” and “for religious
views, [they] should [not] be seen by anyone outside of the
family ever.” Id.
The Secretary does not address whether the Embassy’s
actions—requesting the submission of photographs showing
Mrs. Sabra pregnant and DNA test results to prove the biological
relationship—implicate Mr. and Mrs. Sabra’s religious exercise.
See Def.’s Mem., ECF No. 18-1 at 28-29. According to the
74
Secretary, “the State Department has applied the relevant
regulation mandating that an applicant for a CRBA and passport
prove their U.S. citizenship by a preponderance of the evidence—
including, under the Department’s interpretation, that a
biological relationship exist between the U.S. citizen parent(s)
and child-applicant.” Id. at 29. Consistent with the State
Department’s interpretation, the Secretary argues that the
Embassy “required [Mr. Sabra] to provide evidence of the parent-
child relationship without any pressure on [Mr. and Mrs.
Sabra’s] to change their behavior in violation of their
religion.” Id. As such, Mr. Sabra, through counsel, asserted
religious objections to any DNA testing and photographs of Mrs.
Sabra to satisfy the State Department’s biological relationship
requirement. Pl.’s SOMF, ECF No. 21-2 at 5-6. The Court
therefore finds that the Embassy’s actions implicate Mr. and
Mrs. Sabra’s religious exercise.
2. Sincerely Held Religious Belief
As noted by the Supreme Court, “[t]o qualify for RFRA’s
protection, an asserted belief must be ‘sincere.’” Burwell v.
Hobby Lobby Stores, Inc., 573 U.S. 682, 717 n.28 (2014). The
Supreme Court has emphasized that “[i]t is not within the
judicial ken to question the centrality of particular beliefs or
practices to a faith, or the validity of particular litigants’
interpretations of those creeds.” Hernandez v. Comm’r, 490 U.S.
75
680, 699 (1989). And “[c]ourts generally handle ‘the sincerity
inquiry . . . with a light touch, or ‘judicial shyness.’”
Standing Rock Sioux Tribe, 239 F. Supp. 3d at 90 (quoting
Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 792
(5th Cir. 2012)).
Here, Mr. Sabra argues—and the Secretary does not dispute—
that his and Mrs. Sabra’s religious views are sincere. See,
e.g., Pl.’s Opp’n, ECF No. 21 at 7; Def.’s Opp’n, ECF No. 28 at
23-24. Indeed, the Secretary points out that “[n]owhere in the
RFRA section of the State Department’s moving papers did it
claim that [Mr. Sabra’s] stated beliefs are not sincere.” Def.’s
Reply, ECF No. 29 at 10; see also see Def.’s Mem., ECF No. 18-1
at 27-28. Although the sincerity of Mr. and Mrs. Sabra’s
religious beliefs is unchallenged, Mr. Sabra argues that the
Secretary “challenges whether [his] and [Mrs. Sabra’s] expressed
beliefs are in fact legitimate beliefs under Islamic tenets.”
Pl.’s Opp’n, ECF No. 21 at 7.
Mr. Sabra points to certain statements in the Secretary’s
submissions. See, e.g., Woda Decl., ECF No. 18-3 at 3 ¶ 12 (“I
understand that ACS Chief Greene suggested to the Sabras that a
female officer would be available to review [Mrs.] Sabra’s
pregnancy photos”); id. at 4 ¶ 14 (“I have not previously heard
of a Muslim applicant objecting to DNA testing on this basis”;
“Officer [Darren] Sullivan stated that he has witnessed dozens
76
of DNA tests taken by Palestinian applicants, the majority of
whom are Muslim, and has never seen an applicant articulate a
religious objection”); Decl. of Darren Sullivan (“Sullivan
Decl.”), ECF No. 18-4 at 1 ¶ 2 (“I have witnessed almost 30 DNA
tests taken by Israeli and Palestinian applicants of varied and
diverse backgrounds”; “I have never seen an applicant articulate
a religious objection to participating in DNA testing”); Def.’s
SOMF, ECF No. 18-2 at 3 (“[Mrs.] Sabra . . . did not assert a
religious objection” at the June 12, 2019 interview).
Mr. Sabra contends that “courts evaluating claims brought
under the RFRA ‘accept[] as true the factual allegations that [a
plaintiff’s] beliefs are sincere and of a religious nature.’”
Pl.’s Opp’n, ECF No. 19 at 7 (quoting Kaemmerling v. Lappin, 553
F.3d 669, 679 (D.C. Cir. 2008)). But the D.C. Circuit in
Kaemmerling considered the sufficiency of the complaint under
Federal Rule of Civil Procedure 12(b)(6), conducted a de novo
review, and accepted as true the factual allegations in the
complaint. See Kaemmerling, 553 F.3d at 676-79; accord Ashcroft
v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a [Rule
12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face.” (emphasis added) (citation and
internal quotation marks omitted)). The legal standard for a
Rule 12(b)(6) motion is inapplicable here. In evaluating a
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party’s motion for summary judgment, as here, “[a]ll underlying
facts and inferences are analyzed in the light most favorable to
the non-moving party.” N.S. ex rel. Stein v. District of
Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010) (citing Anderson
v. Liberty Lobby, Inc., 477 U.S. at 247).
Viewing the facts in the light most favorable to Mr. Sabra,
Mr. and Mrs. Sabra’s religious beliefs are sincere. Mr. Sabra
avers that Mrs. Sabra “has in the past refused certain medical
procedures based on her religious beliefs.” M. Sabra Decl., ECF
No. 21-1 at 1 ¶ 7; see also Pl.’s Ex. 1, ECF No. 21-1 at 7
(stating that “[REDACTED]”). Mr. Sabra asserts that “the only
photos taken during [Mrs.] Sabra’s pregnancy are intimate family
photographs which, for religious reasons, the family is
unwilling to provide as she is less than fully attired in these
personal family moments.” Compl., ECF No. 1 at 10 ¶ 43 (emphasis
added). According to Mr. Sabra, the Embassy’s request for DNA
testing and the photographs conflicts with his and Mrs. Sabra’s
sincerely held religious beliefs. Compl., ECF No. 1 at 18 ¶ 78.
In applying the “light touch” for the sincerity inquiry,
Standing Rock Sioux Tribe, 239 F. Supp. 3d at 90, the Court
therefore finds that Mr. Sabra has demonstrated a sincerely held
belief that the Embassy’s request for DNA testing and Mrs.
Sabra’s pregnancy photographs conflict with the religious
exercise of Mr. and Mrs. Sabra.
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3. Substantial Burden
The Court next considers whether Mr. Sabra demonstrates
that the Embassy’s actions placed a substantial burden on his
and Mrs. Sabra’s religious exercise. See Standing Rock Sioux
Tribe, 239 F. Supp. 3d at 88. “Whether a government action
substantially burdens a plaintiff’s religious exercise is a
question of law for a court to decide.” Singh v. McHugh, 185 F.
Supp. 3d 201, 210 (D.D.C. 2016). “A substantial burden exists
when government action puts ‘substantial pressure on an adherent
to modify his behavior and to violate his beliefs.’”
Kaemmerling, 553 F.3d at 678 (quoting Thomas v. Review Bd. of
Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981)). As the
D.C. Circuit has explained, the “substantial burden” inquiry
“prevent[s] RFRA claims from being reduced into questions of
fact, proven by the credibility of the claimant.” Mahoney v.
Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011).
The Secretary argues that “[Mr. Sabra] has failed to set
forth a prima facie violation of RFRA as [Mr. Sabra] has not
shown that any aspect of the Sabras’ religious exercise has been
substantially burdened by the Embassy’s request for additional
evidence, which could include, but was not limited to, the
submission [of] photographs of [Mrs.] Sabra pregnant, and/or a
DNA test.” Def.’s Mem., ECF No. 18-1 at 28. The Secretary
contends that “[t]he Embassy’s decision applying the applicable
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regulations was not contrary to law and does not violate RFRA.”
Id. at 29. The Secretary maintains that Mr. Sabra could have
satisfied the State Department’s biological relationship
requirement by complying with “the Embassy’s request for
additional evidence, which could include photographs of [Mrs.]
Sabra while pregnant or a DNA test.” Def.’s Reply, ECF No. 29 at
10.
To support his position, the Secretary relies on
Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008). See Def.’s
Mem., ECF No. 18-1 at 28. In Kaemmerling, the D.C. Circuit
concluded that the plaintiff—a federal prisoner—failed to
sufficiently allege a substantial burden under RFRA when he
sought to enjoin application of the DNA Analysis Backlog
Elimination Act based on his claim that the government’s
sampling, storage, and collection of his DNA without limitations
violated his religious beliefs about the appropriate use of the
“building blocks of life.” 553 F.3d at 679. There, the
plaintiff, an Evangelical Christian, objected on religious
grounds to the government collecting his DNA information. Id. at
673-74, 678-79. The plaintiff, however, did not object to the
collection of any particular DNA carrier, such as blood, saliva,
skin, or hair. Id. at 678. Neither did the plaintiff object to
the Federal Bureau of Prisons (“BOP”) “sweeping up his hair
after a haircut or wiping up dust that contains particles of his
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skin, even though those are acts of collecting bodily specimens
containing DNA, if the BOP does not extract the DNA information
contained in those specimens.” Id.
The D.C. Circuit held that the plaintiff failed to “allege
facts sufficient to state a substantial burden on his religious
exercise because he [could not] identify any ‘exercise’ which
[was] the subject of the burden to which he object[ed].” Id. at
679. Acknowledging that “the government’s activities with his
fluid or tissue sample after the BOP takes it may offend [the
plaintiff’s] religious beliefs,” the D.C. Circuit rejected that
the government had placed a substantial burden on the plaintiff
because the plaintiff alleged “no religious observance that the
DNA Act impede[d], or acts in violation of his religious beliefs
that it pressure[d] him to perform.” Id. at 679. The D.C.
Circuit explained that the government did not substantially
burden the plaintiff’s religious exercise because “[t]he
extraction and storage of DNA information are entirely
activities of the [Federal Bureau of Investigation], in which
[the plaintiff] plays no role and which occur after the BOP has
taken his fluid or tissue sample (to which he does not object).”
Id.
Kaemmerling is distinguishable from this case. Although the
government’s collection and storage of the plaintiff’s DNA in
Kaemmerling did not “pressure [him] to modify his own behavior
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in any way that would [have] violate[d] his beliefs,” id., the
current record contains evidence that the Embassy’s request for
DNA testing and photographs showing Mrs. Sabra pregnant would
“force[] [Mr. and Mrs. Sabra] to engage in conduct that their
religion forbids” or “prevent[] them from engaging in conduct
their religion requires,” Henderson, 253 F.3d at 16. The Court
cannot find that the Embassy did not “condition[] receipt of an
important benefit upon conduct proscribed by [Mr. and Mrs.
Sabra’s] religious faith, or . . . den[y] such a benefit because
of conduct mandated by [Mr. and Mrs. Sabra’s] religious
belief,” Thomas, 450 U.S. at 717–18. The CRBA and U.S. passport
are the governmental benefits here. See id.
In accordance with her religion, Mrs. Sabra declined
certain medical treatments, see, e.g., Pl.’s Ex. 1, ECF No. 21-1
at 7; Compl., ECF No. 1 at 10 ¶ 43, and Mr. Sabra, along with
Mrs. Sabra, objected to DNA testing on religious grounds, Pl.’s
SOMF, ECF No. 21-2 at 6; see also M. Sabra Decl., ECF No. 21-1
at 1-2 ¶ 7 (“This is consistent with . . . my wife’s expressed
belief that she wanted nothing invasive for religious
reasons.”). Mrs. Sabra avers that Vice-Consul Woda “stated that
we would need to submit to a DNA test to prove [Baby M] is [her]
daughter” during the June 12, 2019 interview. P. Sabra Decl.,
ECF No. 52-2 at 7 ¶ 40; see also Woda Decl., 18-3 at 3 ¶ 13 (“I
suggested that [Mrs. Sabra] could also provide a DNA analysis
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establishing a mother-child relationship, which could be the
fastest and simplest method of resolving the issues.”).
According to Mrs. Sabra, DNA testing goes against her religious
beliefs and she “knew it was not required and consider it a
violation of [their] rights.” P. Sabra Decl., ECF No. 52-2 at 7
¶ 41. Although Mrs. Sabra admits that she did not object to the
DNA testing during the interview, Mrs. Sabra avers that she
“felt extremely hostile at that point,” but that she “objected
to the DNA generally, and also that it was risky to [Baby M’s]
health.” Id. at 7 ¶ 42. There is no indication that Mrs. Sabra
had legal representation at that point. Following the June 12,
2019 interview, Mr. and Mrs. Sabra, through counsel, asserted
religious objections. Pl.’s SOMF, ECF No. 21-2 at 6.
With respect to Vice-Consul Woda’s first declaration,
Mr. Sabra argues that Vice-Consul Woda’s averment—that “I
understand that ACS Chief Greene suggested to the Sabras that a
female officer would be available to review [the] pregnancy
photos”—exceeds his personal knowledge. Pl.’s Reply, ECF No. 23
at 9 n.1 (quoting Woda Decl., ECF No. 18-3 at 3 ¶ 12). The
Secretary responds that the Court may consider that statement
because the “State Department would offer this evidence at trial
through the direct testimony of Consular Chief Greene, who has
personal knowledge of this offer, as she was the individual who
communicated it to the Sabras.” Def.’s Reply, ECF No. 29 at 13
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n.2. The Secretary contends that he “must only demonstrate how
that evidence would be offered in an admissible form at trial.”
Id. (citing Comm. Notes on 2010 Amendment to Fed. R. Civ. P.
56(c)(2)).
“A principal command of Rule 56[(c)(4)] is straightforward:
‘Supporting and opposing affidavits’ on summary-judgment motions
‘shall be made on personal knowledge, shall set forth facts as
would be admissible in evidence, and shall show affirmatively
that the affiant is competent to testify to the matters stated
therein.’” Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir.
1981) (footnote omitted); see also Fed. R. Civ. P. 56(c)(4). And
“[a]lthough the rule’s directive with respect to the
admissibility of an affidavit’s contents on summary judgment has
been liberally construed, its requirement of personal knowledge
by the affiant is unequivocal, and cannot be circumvented. An
affidavit based merely on information and belief is
unacceptable.” Londrigan, 670 F.2d at 1174 (footnotes omitted).
Here, the Secretary does not challenge the personal-
knowledge requirement, and the Secretary concedes that Vice-
Consul Woda’s statement was not made on his personal knowledge.
See Def.’s Reply, ECF No. 29 at 13 n.2. The Court will not
consider Vice-Consul Woda’s statement regarding the Embassy’s
offer to have a female officer view the photographs due to Vice-
Consul Woda’s lack of personal knowledge as to ACS Chief
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Greene’s statements. See Fed. R. Civ. P. 56(c)(4). For the same
reason, the Court will not consider Mr. Sabra’s statements in
his declarations regarding Baby M’s birth, Mrs. Sabra’s meeting
with Vice-Consul Woda, Dr. [REDACTED]’s actions, and Dr.
[REDACTED]’s meeting with Mr. Sabra’s brother. See, e.g., M.
Sabra Suppl. Decl., ECF No. 23-2 at 2 ¶¶ 9-11; M. Sabra Decl.,
ECF No. 21-1 at 2-4 ¶¶ 8-13; Def.’s Reply, ECF No. 29 at 13. It
is undisputed that Mr. Sabra lives in California. E.g., Pl.’s
Reply to Def.’s Counterstatement to Pl.’s SOMF, ECF No. 23-1 at
1 ¶ 1; Def.’s Reply, ECF No. 29 at 13.
In determining whether the Embassy’s request for the DNA
analysis and photographs substantially burdened Mr. and Mrs.
Sabra’s exercise of religion, the Court disregards the
statements contained within the declarations in support of the
Secretary’s motion for summary judgment regarding Mr. and Mrs.
Sabra’s religious objections to the DNA testing. See Woda Decl.,
ECF No. 18-3 at 4 ¶ 14 (“I have not previously heard of a Muslim
applicant objecting to DNA testing on this basis”; “Officer
Sullivan stated that he has witnessed dozens of DNA tests taken
by Palestinian applicants, the majority of whom are Muslim, and
has never seen an applicant articulate a religious objection”);
Sullivan Decl., ECF No. 18-4 at 1 ¶ 2 (“I have witnessed almost
30 DNA tests taken by Israeli and Palestinian applicants of
varied and diverse backgrounds”; “I have never seen an applicant
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articulate a religious objection to participating in DNA
testing”). As the Supreme Court has explained, “the judicial
process is singularly ill equipped to resolve [intra-faith]
differences” and “it is not within the judicial function and
judicial competence to inquire whether [Mr. and Mrs. Sabra] or
[other Muslim applicants] more correctly perceived the commands
of their common faith.” Thomas, 450 U.S. at 715-16.
While the State Department’s guidance states that DNA
“[t]esting is to verify a relationship is entirely voluntary,”
Def.’s Ex. 3, ECF No. 18-3 at 32, the Secretary contends that
DNA testing may be required “[i]n a case where the biological
relationship between a U.S. citizen and their claimed child is
at issue,” Def.’s Opp’n, ECF No. 28 at 22 (citing Parham v.
Clinton, Civ. A. No. 09-1105, 2009 WL 2870671, at * 9 (S.D. Tex.
Aug. 31, 2009)). Here, there is no question that the Embassy
requested the photographs of Mrs. Sabra while pregnant and DNA
analysis to adjudicate the CRBA and passport applications. See,
e.g., Def.’s Reply, ECF No. 29 at 10; Pl.’s SOMF, ECF No. 21-2
at 4-5. The Court therefore finds that the Embassy’s request for
the submission of DNA testing and photographs to meet the State
Department’s biological relationship requirement constitutes a
“substantial burden” under RFRA.
Applying the burden-shifting analysis, the Secretary must
demonstrate that the Embassy’s request of the DNA testing and
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photographs furthers a compelling governmental interest by the
least restrictive means. See Singh, 185 F. Supp. 3d at 217. The
Secretary, however, does not address this burden. See Def.’s
Mem., ECF No. 18-1 at 28-29. Rather, the Secretary focuses on
Mr. Sabra’s initial burden to establish a prima facie violation
under RFRA. See id. The Court cannot grant summary judgment to
the Secretary on Mr. Sabra’s RFRA claim because the Secretary
has failed to present evidence that the governmental interest is
compelling or if the Embassy’s actions were the least
restrictive means. There is a genuine dispute as to whether the
Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy
photographs served a compelling interest by the least
restrictive means. Accordingly, the Court DENIES the Secretary’s
motion for summary judgment as to Count IV.
V. Conclusion
For the reasons set forth above, the Court DENIES
Mr. Sabra’s Motion for Summary Judgment as to Counts I-III,
GRANTS the Secretary’s Motion for Summary Judgment as to Counts
I-III, and DENIES the Secretary’s Motion for Summary Judgment as
to Count IV. A separate Order accompanies this Memorandum
Opinion.
SO ORDERED
Signed: Emmet G. Sullivan
United States District Judge
March 9, 2020
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