USA Passport Application Privacy Act Request, Form #03.030 (OFFSITE LINK)
Getting a USA Passport as a National but not Statutory Citizen, Form #09.076 (OFFSITE LINK) -presentation
Getting a USA Passport as a State National, Form #09.007 (OFFSITE LINK)
USA Passport Application Attachment, Form #06.007 (OFFSITE LINK)
22 U.S. Code § 212 - Persons entitled to passport
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.
It must now be accepted that travel abroad is more than a mere privilege accorded American citizens. It is a right, an attribute of personal liberty, which may not be infringed upon or limited in any way unless there be full compliance with the requirements of due process. Shachtman v. Dulles, D.C.Cir., 1955, 225 F.2d 938; Bauer v. Acheson, D.C.1952, 106 F.Supp. 445; Williams v. Fears, 1900, 179 U.S. 270, 274, 21 S.Ct. 128, 45 L.Ed. 186. Travel beyond the confines of our sovereign borders requires the possession of a passport. It is not only unlawful for a citizen to travel to Europe without a passport but it is virtually impossible to enter a European country without one. See 8 U.S.C. 1185, and Shachtman v. Dulles, supra The denial of a passport must therefore comply with due process requirements. This is especially true where, as here, an unwarranted denial may constitute both a deprivation of personal liberty and of property, for plaintiff does receive legal fees from his European clients.
The rather contradictory shifts in position by the Government regarding [**4] this plaintiff renders suspect the standard for determining the right to a passport under Section 51.135 of the Passport Regulations. Nevertheless, the Court is satisfied that the Secretary of State is necessarily empowered to make reasonable classifications of persons who are to be granted or denied passports. While Section 51.135 does not appear to set forth an unreasonable classification, it must be conceded that it is sweeping in nature and does permit exceedingly wide discretion to the Department of State to deny passports. This being so, fair play requires that one have the opportunity [*221] to challenge the basis of, and reasons for, a denial under this Section directly and specifically. Yet Section 51.170, adopted by the Board of Passport Appeals on December 30, 1953, reads:
'In determining whether there is a preponderance of evidence supporting the denial of a passport the Board shall consider the entire record, including the transcript of the hearing and such confidential information as it may have in its possession. The Board shall take into consideration the inability of the applicant to meet the information of which he has not been advised, specifically or [**5] in detail, or to attack the credibility of confidential informants.'
The Court must consider Sections 51.135 and 51.170 together. In so doing, it becomes evident that the Passport Office retains substantially unrestricted discretion to deny passports under substantive classification 51.135. Facts which they consider warrant a denial need never appear on record. Whether, in fact, evidence exists to warrant a denial, neither an applicant nor the courts can ever know. The source, quality, or quantity of evidence which has guided the Board and been instrumental in its decision can be reviewed by no one. This cannot fairly be held to constitute reasonable regulation. It must be viewed as conferring upon the Board limitless authority. Any hearing provided an applicant becomes an empty gesture. Consider this case. In explaining to plaintiff why his application had been denied the Director of the Passport Office, on February 24, 1955, wrote:
'Evidence has been obtained that you are a member of the Communist Party, and reports of your activities in recent years indicate that if your membership was terminated it was under such circumstances as warrant the conclusion, not otherwise [**6] rebutted by the evidence, that you continue to act in the furtherance and under the discipline of the Communist Party.'
Does this mean that all the Passport Office need do is restate the wording of 51.135(a) to deny a passport? Such conclusion is suggested, as evidence supporting the above statement scarcely appears in the record, although it may well be found in some secret file. Consider also the letter to plaintiff from Mr. John W. Sipes, Counsel of the Board of Passport Appeals, dated April 19, 1955. It informed plaintiff what was indicated in the confidential files, but not what evidence was actually contained in the files or the source of such evidence. To the same effect is the affidavit of John Foster Dulles, Secretary of State. His decision to deny plaintiff a passport rested, so he stated, '* * * on a pattern of associations and activities on the part of plaintiff over an extended period of time leading to the conclusion that plaintiff has been and continues to be a supporter of the Communist movement. Included are associations and activities disclosed by or inferred from the Department of State files concerning the plaintiff as follows * * *'.
In short, there can [**7] be no dispute that confidential information was employed; that files were not revealed; and that evidence contained therein could not be, and was not, subjected to cross-examination. See Transcript of Proceedings, May 6, 1955 of Hearing Panel of the Board of Passport Appeals, pages 62-67.
How can an applicant refute charges which arise from sources, or are based upon evidence, which is closed to him? What good does it do him to be apprised that a passport is denied him due to associations or activities disclosed or inferred from State Department files even if he is told of the associations and activities in a general way? What files? What evidence? Who made the inferences? From what materials were those inferences made?
[*222] To uphold 51.170 would grant to the Government the right to deny passports in an uncontrolled manner, with virtually absolute authority, at any time and in any way it sees fit. The right to a quasijudicial hearing must mean more than the right to permit an applicant to testify and present evidence. It must include the right to know that the decision will be reached upon evidence of which he is aware and can refute directly. See Dulles v. Nathan, [**8] D.C.Cir., 1955, 225 F.2d 29, 30-31. It is not enough that Section 51.170 requires the Board to take into consideration the inability of the applicant to meet the information of which he has not been advised, or to attack the credibility of confidential informants, for whether the Board does or does not do this no one can ever know.
Confidential information is of unquestionable importance to executive officers in performing their duty, but it should be confined for use in obtaining factual data which may itself be used of record. When the basis of action by any branch of the government remains hidden from scrutiny and beyond practical review, the seeds of arbitrary and irresponsible government are sown. More and more the courts have become aware of the irreparable damage which may be, has been, and is, wrought by the secret informer and faceless talebearer whose identity and testimony remains locked in confidential files. See Burrell v. Martin, D.C.Cir., 1955, F.2d ; and Parker v. Lester, 9 Cir., 1955, 227 F.2d 708.
Section 51.170, when used in conjunction with 51.135, does not comport with due process. The case will be sent back to the Passport Office for a hearing within twenty [**9] days. All evidence upon which the Office may rely for its decision under Section 51.135 must appear on record so that the applicant may have the opportunity to meet it and the court to review it.
[Boudin v. Dulles, 136 F. Supp. 218, 220 (1955)]
HN2 The denial of a passport accordingly causes a deprivation of liberty that a citizen otherwise would have. The right to travel, to go from place to place as the means of transportation permit, is a natural right subject to the rights of others and to reasonable regulation under law. A restraint imposed by the Government of the United States upon this liberty, therefore, must conform with the provision of the Fifth Amendment that 'No person shall be * * * deprived of * * * liberty * * * without due process of law'.
It is not procedural due process that is involved in the case as now presented. There is no complaint the Secretary has failed to disclose the reason for his denial of the passport. Furthermore, a hearing of a sort was granted appellant. 5 He was at least given an opportunity to state informally to an official of the Department the matters on which he relied in rebuttal of the reason given by the Department for refusing him a passport. Cf. Bauer v. Acheson, supra; Nathan v. Dulles, D.C.D.C., 129 F.Supp. 951. What is involved at the present stage is a question of substantive due process -- whether the refusal for the reason [**7] given, as alleged in the complaint and undisputed thus far by the Secretary, was arbitrary. If so, it is not a valid foundation for the denial, for the Government may not arbitrarily restrain the liberty of a citizen to travel to Europe. Discretionary power does not carry with it the right to its arbitrary exercise. Otherwise the existence of the power itself would encounter grave constitutional doubts. See Association of Westinghouse Salaried Employees v. Westinghouse Elec. Corp., 348 U.S. 437, 453, 75 S.Ct. 488.
[**8] What is arbitrary, however, in the sense of constituting a denial of due process, depends upon circumstances. Moyer v. Peabody, 212 U.S. 78, 84, 29 S.Ct. 235, 53 L.Ed. 410; Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. Restraint upon travel abroad might be reasonable during an emergency though in normal times it would be arbitrary. World conditions, and those in particular areas, as to which the Executive has special information and on the basis of which he is especially qualified to make decisions, bear upon the [*942] question. For reasons thus suggested the issuance of passports throughout our history has been left to the judgment of the Secretary of State under Presidential regulation, and is subject only to constitutional safeguards. And even these must be defined with cautious regard for the responsibility of the Executive in the conduct of foreign affairs. 6
[**9]
The appellant's own statement in the complaint of the reason he was refused a passport must be taken as true in the present posture of the case, for the Secretary has not answered the complaint. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817. We must take it as true, then, that appellant was first notified of tentative disapproval because of information he was Chairman of the Independent Socialist League, which the Secretary understood had been classified by the Attorney General 7 as both subversive and Communistic, although it appeared to the Secretary the organization had no direct connection with the Communist International. The Secretary also notified appellant that the Department had been advised that the League's publication described the organization ganization as an 'organ of revolutionary Marxism'. At the hearing granted appellant by the Department of State, he testified the League was anti-Stalinist, anti-totalitarian, opposed to violence as a means of solving political, social and economic problems, and that he and the League believed in and strove for the establishment of a socialist economic system [**10] by democratic means. He explained that the decription of the organ above referred to meant only that the League and he stood for a thorough-going reorganization of the economic and social foundations of society but used the term 'revolutionary' with reference to the result rather than the means of achieving it. At the hearing he said the League advocated the formation by the labor movement of a labor party similar to the Labor Party of Great Britain. The complaint further alleges that the League has never had any international affiliations; that appellant desired a passport solely for the purpose of consulting people in Europe whose knowledge of political conditions he respected, and observing those conditions in order to acquired material for his work of writing and lecturing; that he had no intention of engaging in any political activity abroad, and would not engage there in activities which would violate the laws of, reflect upon or embarrass, the United States.
[**11]
The complaint then alleges that the passport was subsequently denied in a letter to appellant in which the Department stated that despite the fact that the League had no connection with the Communist International and was hostile thereto, the Department felt that it would be contrary to the best interests of the United States to grant passport facilities to the actual head of an organization which had been classified by the Attorney General as subversive, especially when he desired to travel abroad on behalf of the organization, adding that should there be a change in the classification by the Attorney General the Department would then give further consideration to the question. The wording of the Department's letter indicates that the listing of the League as Communistic was no longer relied upon. The hearing [*943] appears to have convinced the Department that the League was hostile to the Communist International.
Appellant in the end alleges that the passport was denied 'solely because of the inclusion of the Independent Socialist League on the Attorney General's List', that this listing was without notice or hearing or presentation of evidence or opportunity [**12] to answer, and that appellant, as National Chairman of the League, for nearly six years and on at least fifteen separate occasions, without avail, had attempted to persuade the Attorney General to grant a hearing to the League so that it could prove the injustice of the designation. 8
We think the complaint fairly read shows that the listing of the League by the Attorney General as subversive was the reason for the Secretary's refusal to issue the passport, that is to say, that except for such listing the fact that appellant was head of the organization and wished to go to Europe on its business would not have been considered by the Secretary as ground for rejection of his application. Therefore, with no answer by the Department, we must decide whether this listing, followed by nearly six years of effort by appellant to obtain [**13] a hearing thereon, is sufficient basis for the Secretary's refusal, when considered with the undenied allegations of the complaint that the listing is erroneous.
We do not here characterize as invalid, for its own purposes, the listing by the Attorney General. He is not a party, and, in any event, his listing is not subject to collateral attack in these proceedings. We are called upon only to consider the use made by the Secretary of the listing. Reliance by the Secretary on action by the Attorney General is not precluded. Warning given by the Nation's chief law officer can at least lead to investigation, and in a proper case be an element in decision. But in the present state of the pleadings we must take it as a fact that the League is non-subversive as well as non-Communistic, and has sought for nearly six years the opportunity to demonstrate the former to the Attorney General as it appears to have demonstrated the latter to the Secretary.
While in this court the Government advances additional reasons for the denial of the passport these are not those alleged or shown by any pleading to have been relied upon by the Secretary. Therefore, we may not pass upon their [**14] sufficiency. Securities and Exchange Commission v. Chenery Corp., 318 U.S. 80, 95, 63 S.Ct. 454, 87 L.Ed. 626. For it is not for us to determine, in this case at least, that a passport should or should not be granted, but only whether the reason given by the Secretary for its denial is sufficient. As to this, we think the law must consider to be arbitrary, regardless of good faith, refusal of appellant's application only because the League was listed by the Attorney General as subversive when appellant in detail denies the correctness of this characterization, alleges lack of opportunity so to demonstrate, and when these allegations are not challenged by the Secretary. In these circumstances a sufficient basis for the action of the issuing authority apart from the mere listing must appear. 9 For us to hold that the restraint thus imposed upon appellant is not arbitrary would amount to judicial approval of a deprivation of liberty without a reasonable relation to the conduct of foreign affairs. Unless some additional reason is supplied for the denial, a citizen is prevented indefinitely from traveling to Europe while at the same time it is impossible for [**15] him to remove the cause, even though we [*944] must assume in the present state of the pleadings that he would be able to do so if afforded the opportunity. If there is something which justifies this it should be set forth by an answer to the complaint. Otherwise the denial, judged on the basis alone of the appellant's allegations, creates a situation which the law cannot reconcile with due process. It is worth noting in this connection that when the Attorney General lists an organization for purposes of standards of Federal employment prescribed by the President, which was the occasion for the listing of the League, a separate judgment by the employing agency of the fitness of the individual employee who is a member of the organization is required before removing him from public service. The listing alone is not enough. Kutcher v. Gray, 91 U.S.App.D.C. 266, 270, 199 F.2d 783, 787. Cf. Jason v. Summerfield, 94 U.S.App.D.C. 197, 214 F.2d 273, certiorari denied 348 U.S. 840, 75 S.Ct. 48.
[**16]
We must not confuse the problem of appellant's application for a passport with the conduct of foreign affairs in the political sense, which is entirely removed from judicial competence. For even though his application might be said to come within the scope of foreign affairs in a broad sense, it is also within the scope of the due process clause, which is concerned with the liberty of the individual free of arbitrary administrative restraint. There must be some reconciliation of these interests where only the right of a particular individual to travel is involved and not a question of foreign affairs on a political level.
Reversed and remanded for further proceedings not inconsistent with this opinion.
[Shachtman v. Dulles, D.C. Cir., 1955, 225 F.2d. 938 (1955)]
A passport may not be denied issuance, revoked, restricted, or otherwise limited because of any speech, activity, belief, affiliation, or membership, within or outside the United States, which, if held or conducted within the United States, would be protected by the first amendment to the Constitution of the United States.
(Aug. 1, 1956, ch. 841, title I, § 49, as added Pub. L. 102–138, title I, § 113, Oct. 28, 1991, 105 Stat. 655.)
(e)Authority to deny or revoke passport
(1)Denial
(A)In general
Except as provided under subparagraph (B), upon receiving a certification described in section 7345 of title 26 from the Secretary of the Treasury, the Secretary of State shall not issue a passport to any individual who has a seriously delinquent tax debt described in such section.
(B)Emergency and humanitarian situations
Notwithstanding subparagraph (A), the Secretary of State may issue a passport, in emergency circumstances or for humanitarian reasons, to an individual described in such subparagraph.
(2)Revocation
(A)In general
The Secretary of State may revoke a passport previously issued to any individual described in paragraph (1)(A).
(B)Limitation for return to United StatesIf the Secretary of State decides to revoke a passport under subparagraph (A), the Secretary of State, before revocation, may—
(i)
limit a previously issued passport only for return travel to the United States; or
(ii)
issue a limited passport that only permits return travel to the United States.
(3)Hold harmless
The Secretary of the Treasury, the Secretary of State, and any of their designees shall not be liable to an individual for any action with respect to a certification by the Commissioner of Internal Revenue under section 7345 of title 26.
(f)Revocation or denial of passport in case of individual without social security account number
(1)Denial
(A)In generalExcept as provided under subparagraph (B), upon receiving an application for a passport from an individual that either—
(i)
does not include the social security account number issued to that individual, or
(ii)
includes an incorrect or invalid social security number willfully, intentionally, negligently, or recklessly provided by such individual,
the Secretary of State is authorized to deny such application and is authorized to not issue a passport to the individual.
(B)Emergency and humanitarian situations
Notwithstanding subparagraph (A), the Secretary of State may issue a passport, in emergency circumstances or for humanitarian reasons, to an individual described in subparagraph (A).
(2)Revocation
(A)In general
The Secretary of State may revoke a passport previously issued to any individual described in paragraph (1)(A).
(B)Limitation for return to United StatesIf the Secretary of State decides to revoke a passport under subparagraph (A), the Secretary of State, before revocation, may—
(i)
limit a previously issued passport only for return travel to the United States; or
(ii)
issue a limited passport that only permits return travel to the United States.
(g)Removal of certification from record when debt ceases to be seriously delinquent
If pursuant to subsection (c) or (e) of section 7345 of title 26 the Secretary of State receives from the Secretary of the Treasury a notice that an individual ceases to have a seriously delinquent tax debt, the Secretary of State shall remove from the individual’s record the certification with respect to such debt.
(i)Effective date
The provisions of, and amendments made by, this section shall take effect on December 4, 2015.
Haig v. Agee, 453 U.S. 280, (1981)
"[A passport] is a document, which,
from its nature and object, is addressed to foreign powers; purporting
only to be a request, that the bearer of it may pass safely and
freely; and is to be considered rather in the character of a political
document, by which the bearer is recognised, in foreign countries,
as an American citizen;
and [453 U.S. 280, 293] which, by
usage and the law of nations, is received as evidence of the fact."
Urtetiqui v. D'Arcy, 9 Pet. 692, 698 (1835).
The first Passport Act, adopted
in 1856, provided that the Secretary of State "shall be authorized
to grant and issue passports . . . under such rules as the President
shall designate and prescribe for and on behalf of the United States
. . . ." 23, 11 Stat. 60. 26 This broad and permissive language worked no change in the
power of the Executive to issue passports; nor was it intended to
do so. The Act was passed to centralize passport authority in the
Federal Government 27 and specifically in the Secretary of State. 28 In all other respects, the 1856 Act
"merely confirmed an authority already possessed and [453 U.S. 280, 295] exercised by the
Secretary of State. This authority was ancillary to his broader
authority to protect American
citizens in foreign countries and was necessarily incident
to his general authority to conduct the foreign affairs of the United
States under the Chief Executive." Senate Committee on Government
Operations, Reorganization of the Passport Functions of the Department
of State, 86th Cong., 2d Sess., 13 (Comm. Print 1960).
[Haig v. Agee,
453 U.S. 280, (1981)]
|