Sep 04 2018

The US State Department is still denying passports to US citizens

A report in the Washington Post last week has brought renewed attention to the US State Department’s ongoing denial of passports to many US citizens.

The Washington Post story focuses on Mexican-Americans whose passports have been revoked or whose applications for new or renewal passports have been officially or effectively denied, and suggests that, “under President Trump, the passport denials and revocations appear to be surging.”

We’ve been pointing out the varied methods and manifestations of these State Department practices for years. As a result, we’ve become a common point of contact for US citizens seeking to exercise their right to travel and to obtain redress for passport denials and revocations.  We welcome additional spotlighting of these issues.

But it’s important to recognize that these practices are not new; are not limited to Mexican-Americans, Hispanic-Americans, Muslims, and/or immigrants; did not originate with the Trump Administration; and rely on administrative mechanisms first given official approval by, and on the initiative of, the Obama Administration.

Nor are these practices limited to passports and international travel. Similar restrictions on issuance and renewal of drivers’ licenses and state ID cards being imposed as a result of the REAL-ID Act of 2005 are already causing similar problems for travel within the US.

These practices and problems reflect a bipartisan and constant trend, throughout the Bush, Obama, and Trump Administrations, toward growing use of ID requirements and controls on the issuance of ID credentials to control the movement of both US citizens and foreigners, within the US as well as across international borders.

Here’s the back story to the latest reports on passport denials and revocations, with links to some of the more detailed articles about it that we’ve published over the years:

At some point in the administration of President Clinton or President Bush the younger — we don’t know exactly when, although we have asked — the State Department apparently decided that all records of home births attended by Hispanic midwives in Texas and other states along the southern border of the US were suspect and presumptively fraudulent.

A few midwives had been convicted of document fraud, but all midwives, or at least all Hispanic midwives in border regions, were deemed guilty by professional association.

Invalidating all such birth records, or officially denying passport applications supported by such records as evidence of birthright US citizenship, would have triggered rights to due process. Instead, to evade judicial review, the State Department implemented a de facto policy of indefinite delay of these applications. As long as a passport application is still technically “pending”, an applicant has no “denial” to appeal or challenge in court — even if their application has been in limbo for years, and they can’t travel internationally because they don’t yet have a passport or their previous passport has expired.

At some point — again, we don’t know when, although we have asked — the State Department came up with a “long form” with additional questions that they would send to  disfavored passport applicants as a pretext for delay. The point of the long form wasn’t to collect additional information, but to ask questions to which the answers would be so difficult to obtain or remember that applicants would either be unable to answer all the questions, or would inevitably give incomplete answers or make mistakes — either of which could then be used as the pretextual basis for denial of their passport application.

The passport application long form (“Supplemental Worksheet”) was never properly approved. That meant that the Paperwork Reduction Act precluded the imposition of any adverse consequences, such as detail of a passport, for declining to fill it out. But so far as we know, the form was never challenged on that basis by a passport applicant.

All of this was already happening during the G.W. Bush administration.

Rather than end this informal, illegal, and bigoted practice founded out of mistrust of Mexican-American midwives, the Obama administration sought to institutionalize it and give it at least a veneer of legality by seeking approval of the passport application long form.

The form was submitted for approval by the White House Office of Management and Budget (OMB) in 2011 as a “new” collection of information, although we know from copies sent to us by readers that it was essentially the same as the unapproved form already in use — as the State Department later admitted. According to a filing by the Department of State in response to public comments on the proposal, 900 passport applicants were sent the earlier unapproved (i.e. illegal) form in 2011.

In July 2013, despite an outpouring of opposition prompted by our sounding the alarm about the proposal, Obama’s OMB approved two versions of the “new” form,  Form DS-5513 and Form DS-5520.

The initial approvals of these forms were for three years. In 2016, when the State Department applied for and received renewed approvals of these forms for another three years,  the State Department said that the number of passport applicants required to fill out the “long form” had almost tripled, from 1145 to 3257, between 2013 and 2016. By 2016, 82,347 passport applicant were required to complete Form DS-5520, a slightly shorter but still onerous “supplemental” questionnaire.

In 2011, we filed a FOIA request for records related to Form DS-5513 and its unapproved predecessor(s), including when each version had been distributed and how many people had been asked to fill it out. Five years later, the State Department sent us a bizarre letter threatening to illegally “close” our request without a response. A month later, they sent us an apology withdrawing that threat. But more than seven years after our request, we’ve still received no responsive records.

The consequences of not being able to obtain a US passport were greatly exacerbated by regulations put into effect in 2009, earlier in the Obama administration, closing the last “loophole” (travel by land to and from Canada and Mexico) that had until that time allowed US citizens at least some routes to enter and leave the US without passports.

This is a key aspect of what’s wrong with showing ID: If ID isn’t required in order to exercise the right to travel, controls on ID issuance can’t be used as controls on who is allowed to travel. Conversely, ID requirements for travel convert nominally administrative procedures for ID issuance into extrajudicial permission-to-travel schemes.

New laws were also passed and signed into law by President Obama authorizing revocation or denial of passports, or the issuance of specially marked second-class “scarlet letter” passports designed to prompt exclusion from other countries rather than to actually facilitate travel,  to additional categories of US citizens including citizens who don’t have or don’t provide a Social Security Number and citizens against whom the IRS has administratively assessed tax liabilities,  and to hundreds of thousands of citizens on lifetime “sex offender” blacklists (including people convicted decades ago and for nonviolent consensual private acts).

Meanwhile, we continued to hear from US citizens whose passport applications had been delayed indefinitely by seemingly endless demands for more and more information and documentation before any decisions would be made on their applications.

Some of these people were Hispanic, but another large cluster were Yemeni-American.

Mistrust and presumption of fraud by Yemenis (and, apparently, Yemeni-Americans) by State Department staff at the US Embassy in Sana’a goes back to at least 2009, according to an Embassy cable leaked to Wikileaks by Chelsea Manning.

By 2013, a pattern of revocation and denial of US passports to Yemeni-Americans had been reported in Yemeni expat publications, and in 2014 lawsuits were filed in Michigan and New York on behalf of Yemeni-Americans whose US passports had been denied or revoked.

Some of these US citizens were stranded in Yemen, unable to flee the escalating civil war. Others were trapped in the US, unable to leave without passports. Families were divided, depending on where they were when their passports expired or were revoked. Spouses were separated from spouses, and children were separated from parents.

Despite complaints to the State Department’s Office of the Inspector General (OIG) and to UN international human rights treaty bodies, only those US citizens who filed lawsuits against the State Department in Federal court were able to get their passport applications acted on.

We also heard, and continue to hear, from US citizens denied passports who are neither Muslim nor of Hispanic nor recent immigrant heritage. Prof. Jacqueline Stevens and the Deportation Research Clinic at Northwestern University have chronicled many cases of this sort. Some of these people are stranded abroad and unable to return home. Some are trapped in the US and unable to leave.

Daniel Bruno, for example, was born in New York City, and has the birth certificate to prove it. He’s never been, or been entitled to be, a citizen of any country except the US.  He’s not a Muslim, he has no ancestors he knows of in Mexico, and his mother tongue is English. But he’s been stuck in South America without any passport since he applied to renew his expiring US passport at the US Embassy in Buenos Aires in 2014.

As this chronology should make clear, the pretextual denial of passports to disfavored US citizens is a longstanding, bipartisan problem that won’t be solved by replacing a Republican by a Democrat,  or vice versa, in the White House.

Abuse of travel document requirements and issuance procedures to control our movement is inherent in requiring citizens to have and show ID to travel. The best way to prevent these abuses is to repeal those document requirements so that we can exercise our rights without having to apply to government agencies for permission to travel, and without showing evidence of such permission.

Passports are only the tip of the iceberg. Only a minority of US citizens have passports, and passport issuance hurdles have limited impact on domestic travel. But the problems with passports have parallels — and should be an object lesson — for domestic ID requirements. In particular, the REAL-ID Act of 2005 imposes requirements for evidence of citizenship for drivers’ licenses and ID cards issued by states that choose to comply with the Federal law that are similar to those already imposed on US passport applicants.

No state is yet fully in compliance with the REAL-ID Act, but we’ve already been hearing horror stories from residents of partially compliant states who can’t get ID without producing documents that don’t exist or that they can’t obtain without already having ID.

The abuse of passport issuance prerequisites to restrict the international movements of disfavored US citizens should be a wake-up call of the need to repeal the REAL-ID Act, which carries the potential to be used in the same way to restrict domestic movements.

3 thoughts on “The US State Department is still denying passports to US citizens

  1. ICE held an American man in custody for 1,273 days. He’s not the only one who had to prove his citizenship
    (by Paige St. John and Joel Rubin, Los Angeles Times, September 17, 2018):

    http://www.latimes.com/local/lanow/la-me-citizens-ice-20180427-htmlstory.html

    “Immigration and Customs Enforcement agents repeatedly target U.S. citizens for deportation by mistake, making wrongful arrests based on incomplete government records, bad data and lax investigations, according to a Times review of federal lawsuits, internal ICE documents and interviews.

    “Since 2012, ICE has released from its custody more than 1,480 people after investigating their citizenship claims, according to agency figures. And a Times review of Department of Justice records and interviews with immigration attorneys uncovered hundreds of additional cases in the country’s immigration courts in which people were forced to prove they are Americans and sometimes spent months or even years in detention….”

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