A Yemeni-American U.S. citizen sued the U.S. State Department today, asking a federal court in Michigan, where he lives, to order the State Department to issue him a U.S. passport.

Ahmed Nagi was naturalized as a U.S. citizen twenty years ago.  In May of 2013, after his previous U.S. passport expired, Mr. Nagi applied to renew his passport. He went in person to the State Department’s Passport Office in Detroit, and paid the $60 extra fee for “expedited” passport renewal service.

Normally, a U.S. citizen who applies in person at a Passport Office on an expedited basis — especially if they have been issued a U.S. passport previously, and are applying for a renewal rather than a first-time passport — can pick up their new passport within a couple of days, even the same day if they have evidence of imminent planned international travel.

Mr. Nagi, however, is still waiting for a new passport, sixteen months after he submitted his application. In response to repeated inquiries, Mr. Nasgi and his lawyers have been told only that his passport application is still “pending”. The State Department has used the impossible-to-complete “long form” as a pretext to hold up processing of some disfavored passport applications, but hasn’t asked Mr. Nagi for any additional information or told him anything about why his application hasn’t been approved.

In the meantime, Mr. Nagi is legally prohibited from leaving the USA without a passport.

The U.S. government appears to have decided that there is no legitimate reason for any U.S. citizen to visit Yemen, whether as a tourist or to visit friends or relatives. In a blatant case of discrimination on the basis of national origin, all U.S. citizens of Yemeni birth or ancestry are being treated as presumptively terrorists and subject to de facto travel restrictions, even if they haven’t individually been placed on any U.S. government blacklists.  Hundreds of U.S. citizens are currently stranded in Yemen, unable to leave Yemen or return to the U.S., because the U.S. Embassy in Sana’a has been systematically seizing the passports of any Yemeni-Americans who go to the embassy to request consular services as U.S. citizens.

According to one of Mr. Nagi’s attorneys, Lena Masri of the Council on American-Islamic Relations, “The federal government has routinely delayed the processing of passport applications for Muslims of Yemeni origin for an indefinite period of time.”  By keeping passport applicants in indefinite limbo, the State Department hopes to exercise a “pocket veto” of passport issuance and international travel, without issuing formal decisions denying passport applications that would be subject to judicial review.  “This lawsuit will challenge the federal government’s unchecked practice of denying these individuals their constitutionally-protected right to travel without affording them their right to due process of law.”

By a vote of two judges to one, a panel of the 11th Circuit Court of Appeals has declined to consider a petition by Jonathan Corbett for review of the TSA’s use of virtual strip search machines and “enhanced patdowns” (genital groping), and has opined that if the court were to consider Mr. Corbett’s petition, it would deny it.

If that sounds irregular, it should. Normally, once a court has found a reason it doesn’t need to decide a case on its “merits”, but can resolve it on procedural or jurisdictional grounds, judicial economy dictates that the court won’t issue any opinion on issues it doesn’t have to reach.

In this case, the two judges in the panel majority went out of their way to erect as many barriers as possible to future court challenges to TSA actions, in contravention of normal principles of appellate adjudication and over a cogent dissent, on exactly these grounds, by the third member of the panel.

The ruling on the “merits” of the petition, while bad, is not unprecedented: Every other petition for Court of Appeals review of the TSA’s virtual strip-search practices has already been dismissed.  That’s largely because Congress has directed the Courts of Appeals to limit their “review” of TSA orders to the “administrative record” supporting the TSA’s actions, as provided to the court by the TSA itself, and to treat any “findings of fact” by the TSA, “if supported by substantial evidence” (and even if controverted by more persuasive evidence) as “conclusive”.

Conclusory declarations by TSA employees, not subject to cross-examination and allegedly based on secrets not in the record (“if you knew the secrets we know but can’t reveal, you’d agree with us”) are almost always deemed sufficient to constitute “substantial” evidence for this purpose.

In other words, the TSA gets to tell the Court of Appeals which evidence to consider, and what factual conclusion to draw from it.  Given that the TSA is allowed to make up the facts to suit its own interests, and submit them to the court in secret, it’s scarcely surprising that the decisions made by the Courts of Appeal on the basis of those “conclusive” factual claims by the TSA are almost invariably in the TSA’s favor.

If you think that’s unjust, ask Congress to change this law and support those who argue to the courts, especially the Supreme Court, that this law is unconstitutional.

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Faced with a series of Federal court rulings upholding challenges to “no-fly” orders, or allowing them to proceed toward trial, the US government agencies responsible for “no-fly” orders have responded by pretending that they don’t understand what the courts have ordered them to do.

Instead of complying with court orders, the responsible agencies are asking for months of additional time.

In one case, the request for delay is to get “clarification” of a straightforward court order — and to prepare and submit a different set of pleadings than the exhibits and summaries of testimony the court had demanded.

In another case, the government has asked the court — which has already found that the defendants’ secret no-fly decision-making process unconstitutionally denied the plaintiffs due process of law — to remand the case to the defendants themselves, and give them six months to devise and subject the plaintiffs to yet another extra-judicial “review” of the no-fly list by the defendants, before the court even considers whether that (yet to be devised) new-and-improved administrative no-fly listing and internal kangaroo-court “review” system would be Constitutional.

The first court ruling that the no-fly system or a specific no-fly decision was unconstitutional came in January 2014, following the trial last December in San Francisco in Ibrahim v. DHS.  But Dr. Rahinah Ibrahim is not a US citizen, the US government won’t give her a visa to return to the US, and under US law visa denials are generally not subject to judicial review.  So Judge William Alsup’s ruling in that case has had little practical effect either on Dr. Ibrahim or on no-fly listing and decision-making practices affecting other would-be travelers.

Two other pending cases, however, involve US citizens (and in one of the cases some permanent residents or  green-card holders as well) who would be able to travel freely if they weren’t on the no-fly list.

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