Ali v. District Director, Miami District, U.S. Citizenship and Immigration Services et al

Filing 43

ORDER ON MOTION FOR SUMMARY JUDGMENTdenying 37 Motion for Summary Judgment; denying as moot 42 Joint Motion to Remove this Matter from the Trial Calendar. Signed by Judge Beth Bloom on 9/14/2016. (tas)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 15-cv-61820-BLOOM/Valle

GHIASS MOUHAMED ALI,
Petitioner,
v.
DISTRICT DIRECTOR, MIAMI DISTRICT,
U.S. CITIZENSHIP AND IMMIGRATION
SERVICES, et al.,
Respondents.
_______________________________________/
ORDER ON MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court upon Respondents’ (the “Government”) Motion for
Summary Judgment, ECF No. [37] (the “Motion”). The Court has carefully reviewed the
Motion, the record, all supporting and opposing filings, the exhibits attached thereto, and is
otherwise fully advised in the premises. For the reasons that follow, the Motion is denied.
I.

BACKGROUND
Petitioner Ghiass Mouhamed Ali (“Petitioner”) is a citizen and national of Syria and

lawful permanent resident (“LPR”) of the United States pursuant to the grant of LPR status by
the United States Citizenship and Immigration Services (“USCIS”) on February 27, 2007. See
ECF Nos. [37-1] ¶ 15 (Government’s Statement of Undisputed Facts); [39-1] ¶ 15 (Petitioner’s
Statement of Undisputed Facts) (collectively, “Undisputed Facts”). He first entered the United
States on a student visa in 1979, and began working at the Embassy of the Syrian Arab Republic
(“Syrian Embassy”) as an Arabic secretary on April 1, 1981. See id. ¶¶ 1-2. Petitioner held an

Case No. 15-cv-61820-BLOOM/Valle
A-2 Visa while employed as a secretary, a position he held until November 6, 1984. See id.
¶¶ 3, 5. On November 16, 1984, Petitioner departed the United States for Syria. See id. ¶ 9.
Petitioner married his wife Hazar Ali in 1983, and on December __, 1984, Ms. Ali gave
birth to Sablaa Ali (“Sablaa”) in Fairfax County, Virginia. See id. ¶¶ 4, 10. The Government
does not dispute Petitioner’s claim that he returned to the United States from Syria in December
of 1984, following Sablaa’s birth. Petitioner claims that he became an Attaché with the Syrian
Embassy only upon his return from Syria, on December 23, 1984. See id. ¶ 6. Records from the
United States Department of State, however, reflect that the Syrian Government promoted
Petitioner to the position of Attaché on November 6, 1984. See id. Petitioner enjoyed full
diplomatic immunity throughout his tenure as Attaché, a position he held until November 25,
1986. See id. ¶¶ 7-8.
The record indicates that in 1985, Petitioner applied for a U.S. passport on Sablaa’s
behalf, which the Department of State denied based on a finding that Sablaa lacked United States
citizenship. See id. ¶¶ 11-12; ECF No. [37-6]. Nearly 21 years later, Sablaa filed a Form I-130
(Petition for Alien Relative) on Petitioner’s behalf, which the USCIS approved on May 29, 2006
after determining that Sablaa is a United States citizen. See Undisputed Facts ¶¶ 13-14; ECF No.
[37-8]. Approved Form I-130 in hand, Petitioner applied for LPR status on August 9, 2006,
which the USCIS approved on February 27, 2007. Undisputed Facts ¶ 15; ECF No. [37-9].
After waiting the requisite five years , Petitioner filed an N-400 (Application for Naturalization).
Undisputed Facts ¶ 16; ECF No. [37-5]. This time, the USCIS denied Petitioner’s application,
finding that Sablaa had not obtained United States citizenship at birth due to Petitioner’s position
as Attaché at that time. See Undisputed Facts ¶¶ 16-17; ECF No. [37-10]. As such, the USCIS
determined that Petitioner has never actually been lawfully admitted to the United States, LPR

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card notwithstanding. See Undisputed Facts ¶¶ 16-17. Petitioner appealed the N-400 denial
within the USCIS, and on July 10, 2015, the agency issued its final decision denying Petitioner’s
application to naturalize. See id. ¶ 18; ECF No. [37-11]. On August 30, 2015, Petitioner filed a
petition for review of the USCIS’s decision with this Court, and the Government now moves for
summary judgment. See ECF Nos. [1], [37]. Petitioner’s Response, and the Government’s
Reply, timely followed. See ECF Nos. [39], [41].
II.

LEGAL STANDARD
A court may grant a motion for summary judgment “if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The parties may support their positions by citation to the record,
including, inter alia, depositions, documents, affidavits, or declarations. See Fed. R. Civ. P.
56(c).

An issue is genuine if “a reasonable trier of fact could return judgment for the

non-moving party.” Miccosukee Tribe of Indians of Fla. v. United States, 516 F.3d 1235, 1243
(11th Cir. 2008) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)). A fact
is material if it “might affect the outcome of the suit under the governing law.” Id. (quoting
Anderson, 477 U.S. at 247-48). The Court views the facts in the light most favorable to the
non-moving party and draws all reasonable inferences in the party’s favor.

See Davis v.

Williams, 451 F.3d 759, 763 (11th Cir. 2006). “The mere existence of a scintilla of evidence in
support of the [non-moving party’s] position will be insufficient; there must be evidence on
which a jury could reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. The
Court does not weigh conflicting evidence. See Skop v. City of Atlanta, Ga., 485 F.3d 1130,
1140 (11th Cir. 2007) (quoting Carlin Comm’n, Inc. v. S. Bell Tel. & Tel. Co., 802 F.2d 1352,
1356 (11th Cir. 1986)).

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Case No. 15-cv-61820-BLOOM/Valle
The moving party shoulders the initial burden to demonstrate the absence of a genuine
issue of material fact. See Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th Cir. 2008). If a movant
satisfies this burden, “the nonmoving party ‘must do more than simply show that there is some
metaphysical doubt as to the material facts.’” Ray v. Equifax Info. Servs., L.L.C., 327 F. App’x
819, 825 (11th Cir. 2009) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 586 (1986)). Instead, “the non-moving party ‘must make a sufficient showing on each
essential element of the case for which he has the burden of proof.’” Id. (quoting Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986)). The non-moving party must produce evidence, going
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designating specific facts to suggest that a reasonable jury could find in
the non-moving party’s favor. Shiver, 549 F.3d at 1343. But even where an opposing party
neglects to submit any alleged material facts in controversy, the court cannot grant summary
judgment unless it is satisfied that all of the evidence on the record supports the uncontroverted
material facts that the movant has proposed. See Reese v. Herbert, 527 F.3d 1253, 1268-69,
1272 (11th Cir. 2008); United States v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave.,
Miami, Fla., 363 F.3d 1099, 1103 n.6 (11th Cir. 2004).
III.

DISCUSSION
The Court reviews de novo the USCIS’s denial of Petitioner’s N-400. See 8 U.S.C.

§ 1421(c). In order to succeed on his petition, Petitioner must establish “strict compliance with
all the congressionally imposed prerequisites to the acquisition of citizenship.” Fedorenko v.
United States, 449 U.S. 490, 506 (1981); see Berenyi v. Dist. Dir., Immigration & Naturalization
Serv., 385 U.S. 630, 637 (1967) (“the burden is on the alien applicant to show his eligibility for
citizenship in every respect”). On summary judgment, however, the Government shoulders the

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burden to establish the absence of a genuine issue of material fact. See Shiver, 549 F.3d at 1343.
As explained below, whether Petitioner enjoyed diplomatic immunity at the time of Sablaa’s
birth – the central issue in this case – remains in dispute. Thus, the Government has failed to
meet its burden.
Relevant for purposes of the instant Motion, an applicant for naturalization must have
resided within the United States continuously for at least five years “after being lawfully
admitted for permanent residence.” 8 U.S.C. § 1427(a). Accordingly, an individual is eligible to
apply for naturalization if he has been an LPR for five years. In order to become an LPR, an
individual must submit and have approved a Form I-485 by the USCIS. The USCIS will only
approve a Form I-485 if the applicant shows that he is (1) eligible to receive an immigrant visa
and is admissible to the United States for permanent residence, and (2) an immigrant visa is
immediately available to him at the time his application is filed. See 8 U.S.C. § 1255(a). United
States immigrant visas are not “immediately available” to the vast number of individuals who
wish to adjust status or enter the United States. They are, however, immediately available to
parents of United States citizen (“USC”) children, once that child turns 21 years old. See
8 U.S.C. § 1151(b)(2)(A)(i).

In order to establish that an immigrant visa is immediately

available to a parent of a USC child pursuant to § 1151(b)(2)(A)(i), the USC child must file a
Form I-130 on the parent’s behalf, which the USCIS must then approve.
Petitioner complied with all of the above-outlined procedural steps. Sablaa filed a Form
I-130 petition on Petitioner’s behalf in February of 2006, which the USCIS reviewed and
approved, determining that Petitioner is the father of a USC (Sablaa) over the age of 21 years
old. See Undisputed Facts ¶¶ 13-14. Petitioner then filed a Form I-485, which the USCIS
reviewed and approved on February 27, 2007. Id. ¶ 14. By approving Petitioner’s Form I-485

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and allowing him to adjust his status to that of an LPR, the USCIS necessarily determined that
(1) Petitioner is admissible to the United States for permanent residence and (2) an immigrant
visa was immediately available to him through his USC daughter, Sablaa. Six years later,
however, the USCIS concluded differently, denying Petitioner’s application to naturalize based
on its finding that Sablaa is not actually a USC, and that Petitioner was never properly lawfully
admitted to the United States.1 See ECF No. [37-10].
Although a child born in the United States normally secures citizenship at birth, “[t]he
United States Supreme Court has long held that the jurisdiction clause of the Fourteenth
Amendment was intended to exclude from its operation children of foreign ministers or
diplomatic officers born within the United States.” Raya v. Clinton, 703 F. Supp. 2d 569, 576
(W.D. Va. 2010) (citing Slaughter–House Cases, 83 U.S. 36, 73 (1873) and United States v.
Wong Kim Ark, 169 U.S. 649, 693 (1898)). Whether Sablaa obtained United States citizenship at
birth, therefore, depends on Petitioner’s diplomatic status at the time of her birth. The answer to
that question, in turn, determines whether Petitioner has been lawfully admitted to the United
States for permanent residence such that he is eligible to naturalize.
Despite her birth in Fairfax, Virginia, the parties agree that Sablaa did not become a USC
at birth if Petitioner enjoyed full diplomatic immunity at that time. See Nikoi v. Attorney Gen.,
939 F.2d 1065, 1066 (D.C. Cir. 1991) (“Because one parent was a foreign official with
diplomatic immunity when each child was born, the birth did not confer United States
citizenship.”). The parties also agree that if Petitioner served as an Attaché with the Syrian

1

Despite the Government’s position that Petitioner improperly secured LPR status without actually being
lawfully admitted to the United States, it appears that the Department of Homeland Security has not
initiated proceedings in immigration court to revoke Petitioner’s LPR card.

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Embassy at the time of Sablaa’s birth, he enjoyed full diplomatic immunity.2 See ECF No. [39]
at 7. The Government argues that its records show that Petitioner became an Attaché on the
same day he stopped working as an Arabic secretary: November 6, 1984. Petitioner disagrees
emphatically, stating that he did not actually become an Attaché until December 23, 1984, after
Sablaa’s birth.3 Petitioner’s Undisputed Facts ¶ 6. All primary evidence pertinent to this
30-year-old, fact-intensive dispute is either destroyed, housed with the United States
Government, or located somewhere in war-torn Syria.
“The determination of whether a person has diplomatic immunity is a mixed question of
fact and law.” United States v. Al-Hamdi, 356 F.3d 564, 569 (4th Cir. 2004). Pursuant to the
Diplomatic Relations Act of 1978, 22 U.S.C. §§ 254a–254e, the governing law in the United
States on the issue of diplomatic privileges and immunities is the Vienna Convention on
Diplomatic Relations (“Vienna Convention”). See Tabion v. Mufti, 73 F.3d 535, 538 (4th Cir.
1996). The Vienna Convention provides diplomatic agents a broad array of privileges and
immunities, most notably “absolute immunity from criminal prosecution and protection from
most civil and administrative actions brought in the ‘receiving State,’ i.e., the state where they
are stationed.” Id. at 537. “The Vienna Convention ‘premise[s] diplomatic immunity upon
recognition by the receiving state.’” Raya, 703 F. Supp. 2d at 576 (quoting United States v.
Lumumba, 741 F.2d 12, 15 (2d Cir. 1984)). Under Article 10 of the Vienna Convention, the first
step in obtaining diplomatic immunity begins with the sending state “notify[ing] the receiving
state of ‘the appointment of members of the mission, their arrival and their final departure or the
termination of their functions with the mission.’” Id. (quoting Vienna Convention, art. 10).

2

The Government does not argue that Petitioner’s prior status as an Arabic secretary conferred upon him
diplomatic immunity such that it may affect Sablaa’s citizenship. See Motion at 11, 13.

3

The Government does not challenge Petitioner’s claim that Sablaa was born prior to December 23, 1984.

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Case No. 15-cv-61820-BLOOM/Valle
Pursuant to Article 43 of the Vienna Convention, the function of a diplomatic agent comes to an
end:
(a) on notification by the sending State to the receiving State that the function of
the diplomatic agent has come to an end; [or]
(b) on notification by the receiving State to the sending State that, in accordance
with paragraph 2 of Article 9, it refuses to recognize the diplomatic agent as a
member of the mission.
Vienna Convention, art. 43. “Once the functions of a person enjoying privileges and immunities
have come to an end, such privileges and immunities normally cease ‘at the moment when he
leaves the country, or on expiry of a reasonable period in which to do so.’” Raya, 703 F. Supp.
2d at 577 (quoting Vienna Convention, art. 39).
As the Government has the burden on summary judgment, the Court begins with the
evidence the Government has produced in support of its position that Petitioner had diplomatic
immunity at the time of Sablaa’s birth. First, the Government cites to the signed statement of
Clifton C. Seagroves, Acting Deputy Director of the State Department’s Office of Foreign
Missions, who states that Official Department of State records “indicate” that Petitioner assumed
his duties as Attaché “effective November 6, 1984.” ECF No. [37-12]. In coming to this
conclusion, Deputy Director Seagroves relies solely on information contained in the “TOMIS”
database. See Motion at 12; ECF Nos. [37-13] and [39-5] at 146:4-11 (“Seagroves Depo.”). The
State Department uses the TOMIS database system to catalog the full accreditation record of
individuals present in the United States on behalf of a foreign mission, and the Office of Foreign
Missions reviews this database when it makes an immunity certification. See Seagroves Depo. at
146:4-22, 147:1. TOMIS reflects that Petitioner “assumed duty” as an Attaché on November 6,
1984 – the same date that TOMIS reflects Petitioner ended his job as secretary. See ECF No.

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[37-4] at 3, 4. This information appears to have been entered into the TOMIS system on
November 16, 1984, the date Petitioner left the United States for Syria. See id. at 3
The Government states that in 1984, the TOMIS system was updated manually with
information gleaned “exclusively through paper documents” issued by foreign embassies. ECF
No. [41] at 4. The Government concedes that the only relevant, contemporary “paper document[
]” in the record is a November 6, 1984 “Notification of Termination of Employment with a
Foreign Government” (“Notification of Termination”) issued by the Syrian Arab Republic,
notifying the State Department that Petitioner’s employment as secretary had terminated.4 See
ECF No. [37-3] at 4; see also Motion at 13 (“According to the TOMIS database, and the
available underlying records . . . .”); ECF No. [41] at 5. This document is type-written, but in the
margin, it contains an undated, hand-written notation in the English language, stating that
Petitioner had been “promoted to attache.” ECF No. [37-3] at 4. This handwritten notation is
the only primary evidence in the record that supports the Government’s position that Petitioner
became an Attaché on November 6, 1984.
The Government has also submitted Sablaa’s 1985 passport application, denied by the
State Department with the handwritten note: “on Blue List 11/84 per protocol.” See ECF No.
[37-6]. Whomever made the handwritten note appears to have replaced the number “11”
(November) with the number “12” (December) for the date Petitioner allegedly appeared “on
Blue List.” See id. The referenced Blue List is a diplomatic list maintained by the Department
of State. The Government argues that the Blue List is not “conclusive evidence that a person
listed enjoys diplomatic status.” Motion at 14 (citing Trost v. Tompkins, 44 A. 2d 226, 228-30
(Mun. Ct. App. D.C. 1945) and United States v. Dizdar, 581 F.2d 1031, 1034-35 (2d Cir. 1978)).
4

The record production made by Agency Records Officer William P. Fischer includes only Petitioner’s
1981 Notification of Foreign Government-Related Employment Status, and Petitioner’s 1984 Notification
of Termination. See ECF No. [37-3].

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Case No. 15-cv-61820-BLOOM/Valle
Despite the State Department’s stated rationale for denying Sablaa’s passport application 31
years ago, the Government concedes that Petitioner did not actually appear on the Blue List until
February 1985, after Sablaa’s birth. See ECF No. [41] at 6; see also ECF No. [37-14]. As such,
the Department of State’s denial of Sablaa’s passport application in 1985 constitutes
circumstantial evidence of Petitioner’s status at that time, evidence possibly premised on
incorrect information.
The only primary and contemporary evidence produced by the Government in support of
the information contained in the TOMIS database is the unidentified, hand-written note on the
Notification of Termination. Petitioner disputes the accuracy of this notation, testifying that his
position as secretary ended on November 6, 1984 (undisputed), and that he left for Syria on
November 16, 1984 (also undisputed) for the purpose of applying for, training, and taking an
exam to become an Attaché. See ECF Nos. [37-2] and [39-2] at 18, 19, 26-31, 78-79 (“Ali
Depo.”); see id. at 18:20-24 (“they told me I have to go . . . I have to go to Syria first and get it
approved from there and go through a short course over there that they use for diplomats before
they hire them”), 26:14-18 (“if you pass it, they will tell you -- they will give you a request -they will hire. They will give a request to the Embassy to give you whatever status it is and send
you back.”), 27:20-21 (“it’s not a definite thing when you go to that course.”). Petitioner states
that he first assumed and commenced his position as Attaché upon reentering the United States
on December 23, 1984, after Sablaa’s birth. See id. at 18, 19, 26-31. Petitioner did not receive
an A-1 Diplomatic Visa until after Sablaa’s birth, ECF No. [39-4], and the record does not
contain any Notice of Foreign Government-Related Employment Status or Notice of
Appointment documenting the date Petitioner became an Attaché.

However, according to

Deputy Director Seagroves and the Government, such documentation is required when an

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Case No. 15-cv-61820-BLOOM/Valle
individual is hired at a foreign embassy. See generally Seagroves Depo. at 13-16, 53-55; see id.
at 14:14-17 (testifying that diplomats receive an A-1 visa before they enter the United States, and
that after “they arrive, they go to their embassy or consulate, . . . and the embassy or consulate
then submits what we refer to as a Notification of Appointment.”); [41] at 5 (“Although this
notation corroborates Ali’s promotion . . . the Syrian Arab Republic had to have provided the
Department of State with formal notification of his promotion”); see also Raya, 703 F. Supp. 2d
at 578 (“The Notice of Appointment formally notified the State Department . . . the Vienna
Convention requires sending countries to provide formal notice of a diplomatic agent’s
appointment and termination”).

Deputy Director Seagroves further testified that when an

embassy employee is promoted to a position that enjoys diplomatic status while in the United
States, a “Notification of Change” document is issued to reflect the promotion and new status.
See Seagroves Depo at 55:1-15.

Neither party has provided the Court with a Notice of

Appointment or Notice of Change document.5
Petitioner has also produced a “letter” that he wrote and sent to the “Ministry of Foreign
Affairs – Syrian Arab Republic.” ECF No. [37-16]. The letter is stamped and was returned to
Petitioner by an individual apparently affiliated with the Syrian Government: “Raghdan Khalil,”
“Director of the Consular Department.” Id. In his letter Petitioner asks that the Ministry “check
the official records kept . . . to verify and attest to the work carried out by me during the 1980s in
the Syrian Embassy in the United States of America.” Id. Petitioner declares in his letter that he
“did not work in any diplomatic position” at the Syrian Embassy until December 23, 1984, the
date he “started [his] position as [A]ttaché.” Id. Petitioner requests that the Ministry “check the
official records kept by the Ministry of Foreign Affairs and . . . attest that the information
5

Regardless of whether or not such documents have been destroyed by the Government pursuant to
standard protocol, the Government still has the evidentiary burden on summary judgment.

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Case No. 15-cv-61820-BLOOM/Valle
concerning my work at the Syrian Embassy in the USA as outlined above is completely true and
accurate.” Id. The bottom of the letter, returned to Petitioner, contains two stamps in the Arabic
language.

One stamp states “Syrian Arabic Republic – Ministry of Foreign Affairs and

Expatriates.” Next to that stamp, in Arabic handwriting, is written: “[w]e attest to the validity of
the information stated and represented in this application as submitted by Mr. Ali Ghiass.” Id.
Another stamp states, in pre-typed Arabic: “we attest to the authenticity of the signature without
any responsibility as to the contents of this document.” Id. That stamp is also from the “Syrian
Arabic Republic – Ministry of Foreign Affairs and Expatriates.” Id.
The Government argues that the stamps on the letter are inadmissible hearsay, and should
not be considered on summary judgment. See Motion at 16. Under Rule 56(c)(4) of the Federal
Rules, “[a]n affidavit or declaration used to support or oppose a motion [for summary judgment]
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.” “‘The general
rule is that inadmissible hearsay cannot be considered on a motion for summary judgment’ . . .
Nevertheless, ‘a district court may consider a hearsay statement in passing on a motion for
summary judgment if the statement could be reduced to admissible evidence at trial or reduced to
admissible form.’” Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir. 2012)
(quoting Macuba v. Deboer, 193 F.3d 1316, 1322-23 (11th Cir. 1999)); see Longcrier v. HL–A
Co., Inc., 595 F. Supp. 2d 1218, 1223 (S.D. Ala. 2008) (“The general rule in this Circuit is that
parties’ exhibits may be considered for purposes of pretrial rulings so long as they can be
reduced to admissible form at trial[ ]”). “The most obvious way that hearsay testimony can be
reduced to admissible form is to have the hearsay declarant testify directly to the matter at trial.”
Jones, 683 F.3d. at 1294 (citing See Pritchard v. S. Co. Servs., 92 F.3d 1130, 1135 (11th Cir.

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Case No. 15-cv-61820-BLOOM/Valle
1996)). For purposes of the instant Motion, the Court finds that the letter and stamps meet this
standard. Petitioner can testify at the hearing. “Raghdan Khalil,” the “Director of the Consular
Department,” could also conceivably testify at Petitioner’s hearing as to the accuracy of his
declaration, and the contents of Petitioner’s letter. The stamp from the “Syrian Arabic Republic
– Ministry of Foreign Affairs and Expatriates” attests to the authenticity of “the signature” –
presumably Mr. Khalil’s. See Davis, 451 F.3d at 763 (Court views the facts in the light most
favorable to the non-moving party and draws all reasonable inferences in the party’s favor).
Handwriting next to the other stamp “attest[s] to the validity of the information stated” in
Petitioner’s letter. ECF No. [37-16]. As “Director of the Consular Department,” Mr. Khalil
would presumably be competent to testify on the matters stated, and any records he used as the
basis for his conclusion are potentially admissible at Petitioner’s hearing. See Fed. R. Civ. P.
56(c)(4); Fed. R. Evid. 902(3), (11)-(12). The Court does not find that Petitioner has met his
burden to establish that the letter is admissible at his hearing; rather, the Court holds that the
letter may be considered on summary judgment.

See Jones, 683 F.3d 1293-94.

Having

considered the letter, the Court concludes that it supports Petitioner’s claim that the Syrian
government did not promote him to Attaché, and that he did not occupy any diplomatic post,
until he returned from Syria on December 23, 1984.
The Government argues that Mr. Khalil’s letter, Petitioner’s testimony, the timing of his
A-1 Visa grant, and his non-existence on the Blue List do not conclusively establish that he did
not enjoy diplomatic immunity at the time of Sablaa’s birth. See Motion at 14; ECF No. [41] at
6-8. While this may be true, Petitioner is not tasked with the burden of proving a negative until
his hearing before this Court.

On the Government’s Motion for Summary Judgment, the

Government has the burden to show that the trier of fact could not reasonably find for Petitioner

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Case No. 15-cv-61820-BLOOM/Valle
based on the above-described evidence. See Miccosukee Tribe of Indians of Fla., 516 F.3d at
1243; Anderson, 477 U.S. at 247-48. This, the Government has not done. The Government has
not produced formal evidence that serves as the basis for the TOMIS system determination.
Petitioner has presented his own testimony, a document purportedly from the Syrian government,
and circumstantial evidence in support of his position, and the Government’s arguments
regarding the sufficiency of this evidence must wait until Petitioner’s hearing; on summary
judgment, the Court cannot weigh evidence, determine Petitioner’s credibility, or draw many of
the inferences that the Government urges the Court to draw. See Skop, 485 F.3d at 1140; Davis,
451 F.3d at 763; see also Reid v. Sec’y, FL Dept of Corr., 486 F. App’x 848, 852 (11th Cir.
2012) (“for purposes of summary judgment, there is nothing inherently wrong with ‘self-serving
testimony,’ and it may not be disregarded by the district court in determining whether there is a
genuine dispute of fact on a material issue in the case.”).
Despite this material evidentiary dispute, the Government urges that the Court find the
TOMIS system dispositive. In support, the Government cites to the Eleventh Circuit’s holding in
Abdulaziz v. Metro. Dade Cty. that “once the United States Department of State has regularly
certified a visitor to this country as having diplomatic status, the courts are bound to accept that
determination, and that the diplomatic immunity flowing from that status serves as a defense to
suits.” 741 F.2d 1328, 1329-30 (11th Cir. 1984). However, unlike Abdulaziz and the other
diplomatic immunity cases in the criminal, tort, and family-law context cited by the
Government,6 the instant Motion does not concern Petitioner’s current or future immunity suit.

6

See Carrera v. Carrera, 174 F.2d 496, 497 (D.C. Cir. 1949) (finding in the context of suit for child
support and custody that “[t]he courts are disposed to accept as conclusive of the fact of the diplomatic
status of an individual claiming an exemption”) (emphasis added)); Al-Hamdi, 356 F.3d at 573 (“the State
Department’s issuance of an A-1 visa to Al-Hamdi did not confer diplomatic status, and he was subject to
the criminal jurisdiction of the United States at the time of his arrest.”); see also In re Baiz, 135 U.S. 403
(1890) (asserting immunity from tort); United States v. Khobragade, 15 F. Supp. 3d 383 (S.D.N.Y. 2014)

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Rather, the Court must determine whether the Government has met its burden to establish that
the State Department properly afforded Petitioner diplomatic immunity nearly 32 years ago.
Importantly, the conclusion reached in Abdulaziz is premised on the Eleventh Circuit’s
acknowledgement that “diplomatic immunity serves the needs of the foreign sovereign,” and that
the “purposes of such immunity are to ‘contribute to the development of friendly relations among
nations’ and ‘to ensure the efficient performance of the functions of the diplomatic missions.’”
Abdulaziz, 741 F.2d at 1330 (quoting Hellenic Lines, Ltd. v. Moore, 345 F.2d 978, 980 (D.C. Cir.
1965) and citing United States v. Arlington, 669 F.2d 925, 930 (4th Cir.1982), cert. denied, 459
U.S. 801 (1982)). Such sovereignty concerns – naturally present when the United States seeks to
hold a foreign national criminally or civilly liable – are hardly present in the instant dispute.
The most analogous case cited by the Government is Raya v. Clinton, a passport case, in
which the district court noted that a “court may not review the State Department’s factual
determination as to whether an individual was entitled to diplomatic privileges and immunities
on a particular date.” 703 F. Supp. 2d at 577. Raya, however, is not binding on this Court, and
unlike the instant case, the record in Raya contained an uncontested Notification of Appointment
of Foreign Diplomatic Officer and a Notice of Final Departure of Foreign Diplomatic Officer,
documenting the exact dates the petitioner’s father had diplomatic immunity. See id. at 578. In
this case, of course, the record does not contain any Notification of Appointment or other formal
notification of Petitioner’s appointment to Attaché. In any event, the Raya decision, like the
other cases cited by the Government, stands for the narrower proposition that the State
Department’s “certification . . . that an individual [is] a diplomatic agent is binding on the court

(asserting immunity from criminal prosecution); Montuya v. Chedid, 779 F. Supp. 2d 60 (D.D.C. 2011)
(asserting immunity from claims that the defendants failed to pay minimum wage); United States v.
Kuznetsov, 442 F. Supp. 2d 102 (S.D.N.Y. 2006) (asserting immunity for prosecution for conspiracy to
commit money laundering).

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when it is based on a reasonable interpretation of the Vienna Convention.” Id. at 577. Only
after making such a determination does Raya counsel that a court may not go “behind the State
Department’s determination that the plaintiff’s father enjoyed diplomatic privileges and
immunities.”

Id. at 578; see also Al-Hamdi, 356 F.3d at 573 (“we hold that the State

Department’s certification, which is based upon a reasonable interpretation of the Vienna
Convention, is conclusive evidence as to the diplomatic status of an individual.” (emphasis
added)).

The Government concedes that “under the Vienna Convention,” the handwritten

notation on the Notification of Termination “could not be the basis for extending full diplomatic
immunity to” Petitioner. ECF No. [41] at 5. As no other notification exists in the record, the
Court finds that the Government has not established that the State Department’s reading of the
Vienna Convention was necessarily reasonable. See Vulcan Iron Works, Inc. v. Polish Am.
Mach. Corp., 479 F. Supp. 1060, 1067 (S.D.N.Y. 1979) (holding that the State Department lacks
the “unbridled discretion to deem notification sufficient or insufficient in individual cases” if
such notice otherwise appears inadequate under the Vienna Convention).
The Government urges the Court to ignore the record’s evidentiary omissions, and infer
that the Department of State must have received “formal notification of [Petitioner’s] promotion
before the Department of State would extend full diplomatic immunity,” as “agency actions are
entitled to a presumption of regularity.” ECF No. [41] at 5. On summary judgment however, all
reasonable inferences are made in favor of the non-moving party. Moreover, the presumption of
regularity only exists “[a]bsent evidence to the contrary,” Sierra Club v. U.S. Army Corps of
Engineers, 295 F.3d 1209, 1223 (11th Cir. 2002). As outlined above, contrary evidence exists in
this case. The Government cannot avoid its evidentiary burden on summary judgment by
asserting a burden-shifting presumption, the factual basis of which Petitioner contests. Lacking

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Case No. 15-cv-61820-BLOOM/Valle
the very evidence the Government concedes the State Department needs to “reasonably
interpret” the Vienna Convention, the Court finds the instant dispute distinguishable from Raya
and the other cited authority.7 See Vulcan Iron Works, Inc., 479 F. Supp. at 1067 (finding that
“the notice that the State Department received of Golab’s status was not ‘notification’ within the
meaning of Article 10 of the Vienna Convention.”); c.f. Al-Hamdi, 356 F.3d at 571 (finding that
the defendant had “failed to show how the State Department’s interpretation violates the dictates
of the Vienna Convention”). As a material issue of fact remains in dispute, the Motion is denied.
IV.

CONCLUSION
The USCIS has now twice concluded that Sablaa is a USC by birth, and twice determined

that she is not. Petitioner will now have an opportunity to establish which conclusion is correct.
The Court finds that the Government has failed to meet its burden to establish that summary
judgment is warranted. A material dispute exists regarding Sablaa’s citizenship status at birth
and, thus, Petitioner’s lawful admission. It is therefore
ORDERED AND ADJUDGED that the Government’s Motion for Summary Judgment,
ECF No. [37], is DENIED. The parties’ Joint Motion to Remove This Matter From The Trial
Calendar And Suspend All Deadlines In The Scheduling Order, ECF No. [42], is DENIED as
moot.
DONE AND ORDERED in Miami, Florida this 14th day of September, 2016.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE

7

Based on the deficiencies described above, the Court also does not find it “clear from the record that the
certification from the State Department [is] . . . not arbitrary or capricious, and . . . supported by
substantial evidence.” Raya, 703 F. Supp. 2d at 578.

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Case No. 15-cv-61820-BLOOM/Valle
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