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Remember the bid of #HodaMuthana, the ISIS bride stuck in A-Hawl camp in Syria, to have a US judge declare she & her son are US citiz & order Govt to facilitate their return to US, based on a next-of-kin lawsuit filed by her dad. Here is the UPDATE
1/ After efforts for expeditious adjudic was denied in March, now Govt has moved to dismiss the lawsuit claiming lack of subject matter jurisdiction and/or lack of merits. And in an effort to have it decided now Govt has brought in the actual evidence it believes show no merits.
2/ I hate it when Def try to convert a 12b motion into an MSJ but here it seems as the issues are kinda right for a R56 decision. Well, maybe I am biased because right from the start I thought that the complaint had no chance as drafted. But here are the juicy details:
3/The question is whether #HodaMuthana acquired citizenship by her birth in New Jersey in ' 94. No! this is not a ‘of-course she did, stupid! She was born here’ type a situation. The reason is coz her dad, the plaintiff here, was accredited Yemeni diplomat to the UN Miss in NYC.
4/ DOJ presented a declaration from Dononvan, a minister counselor for Host Country Affairs, basically the ‘I know how things are done’ witness to establish not only facts that Govt believe give it clear right to a victory but to cements it by showing “established practice”.
5/ So, according to Mr. Dononvan, contemp records maintained by USUN show #HodaMuthana’s dad enjoyed full diplomatic immunity until 6 Feb '95, that is full 3 months after she was born. The 6 Feb 1995 date when US received notific that Ahmed Muthana had been fired.
6/ The Muthana’s team claims that he stopped being a ‘diplomat’ on date he was fired which was Sep '94, thus before she was born. 
7/ Validity of dipl immunity is crucial in this case bc a person born in the U.S. to diplomat parents is not entitled to birth-right citiz bc she is not ‘subject to the jurisdiction thereof’. Both the US Const & INA are clear on that. So when diplomatic immunity ceased is the key
8/ That, however, is controlled not by domestic law but by the Vienna Convention -- signed and ratified by the US. Article 10 requires a sending State (her Yemen) to notify the receiving State (US) of “[t]he appointment of members of the mission [and] their arrival.”
9/ Receiv state then decides & notifies Sending state that immunity has been afforded to diplomat & family. US then creates paper record to track the status granted.
10/ Here is the Key in this case! Per Art 43 “[t]he function of a diplomatic agent comes to an end . . . ***on notification*** by the sending State to the receiving State that the function of the diplomatic agent has come to an end.”
11/ Muthana legal team claims, however, that the date of termination of a diplomatic position—rather than the date of notification of termination—governs validity & duration of diplomatic immunity. It will be interesting to see how Plaintiff responds to the Art 43 argument.
12/. But DOS has taken the ‘belt & suspenders” approach and is arguing that whatever the law is, here the Muthana family was actually enjoying diplomatic immunity beyond the termination of her dad’s employment and provides the actual records maintained. Few things are noteworthy.
13/ The printed notif list shows Muthana fam may have had a spat w own mission & may have gone AOWL. Handwritten notations appear to suggest that #HodaMuthana’s parents were communicating w US office after he was terminated perhaps to explain failure to depart etc.
14/ the KARDEX card shows Hoda Muthana being added to her father file with her DOB. It appears that her parents who were in transition to LPR status based on an 130 petition filed by Hoda’s grandma, needed to show continuing G-1 status. Woooo.
15/ Ergo, they reported her birth to US (which would have afforded her immunity) but also explains the delay in departure because of the pending effort to obtain LPR status.
16/ The Govt declarant says the fact that the birth was reported and the card was annotated shows that US continued to afford diplomatic immunity to the Muthana family until 6 Febriary 1995 when they received the notification of prior termination.
17/ Maybe! but it could also reflect efforts by Muthanaa to extend the validity of their G-1 status so that parents did't need to leave.
18/ If her father was fired in June, under Plaintiff’s theory, diplomatic immunity ended in June but his G-1 non-immigrant status ended 30 days later. The family would have thus been required to leave before her birth. They successfully extended status and she was born in Jursey.
19/ If the judge buys their argument Hoda Muthana may be a citizen, but if her parents manipulated the rules of G-1 status their own acquired citizenship may be at stake. If they were not entitled to LPR stat at acquisition they were not also eligible for naturalization … Welp!
20/ But there is more interesting tidbits. When #HodaMuthana got her passport in 2005 apparently DOS requested proof beyond her Jersey birth certificate.
21/ According to complaint, Muthana provided a letter dated 18 Oct 2004, from USUN – the same agency from which Dononvan hails, saying that USUN records indicated that Hoda’s dad had been a member of Yemeni mission to UN from 1990 to 1 September 1994 ...
22/ .... that Ahmed Muthana had enjoyed diplomatic immunity during this time period. W declaration #HodaMuthana got her 1st passport. It is not explicit, but it looks like DOS is saying that the '04 letter is not legit.
23/ Maybe her dad still had connections at UN & got a buddy to right the letter and express ‘legal opinion’ on diplomatic immunity based on termination. Or maybe, Govt is changing its tune now bc Vienna convention says so. Will see!
24/ The claims for revocation of passport and equitable citizenship were a no go from the start. But Govt correctly points out that the '16 Passport cancellation has no bearing on citizenship if #HodaMuthana had acquired one. It affect only the passport
25/ Sec 1504(a) is clear that revokation of a document that evidence citizenship such as a passport “shall affect only the document and not the citizenship status of the person in whose name the document was issued.”
26/ 22 C.F.R. § 51.62(a)(2) and 1504 allow revocation for a passport that “was illegally, fraudulently or erroneously obtained”. The Obama Admin claimed an error in issuance, will see if Trump will trump that by claiming illegality or fraud. I would not be surprised if they do
27/ Fascinating case with unique legal issues that I will continue to report on. But the footnote in DOJ motion did not bode well. Hopefully Judge will not go there.
