2016-Digest-United-States.pdf, Study notes of Law

Download 2016-Digest-United-States.pdf and more Study notes Law in PDF only on Docsity! DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 2016 CarrieLyn D. Guymon Editor Office of the Legal Adviser United States Department of State Table of Contents Introduction ......................................................................................................................................... xix Note from the Editor ......................................................................................................................... xxiii CHAPTER 1 ............................................................................................................................................. 1 Nationality, Citizenship, and Immigration ........................................................................................... 1 A. NATIONALITY, CITIZENSHIP, AND PASSPORTS ................................................................................. 1 1. Derivative Citizenship: Morales-Santana ...................................................................................... 1 2. Tuaua: Notation on Passports Issued to Non-Citizen U.S. Nationals ............................................ 13 3. Citizenship Transmission on Military Bases: Thomas .................................................................. 18 B. IMMIGRATION AND VISAS ............................................................................................................ 21 1. Consular Nonreviewability ......................................................................................................... 21 a. Sidhu v. Kerry ......................................................................................................................... 21 b. Allen v. Milas .......................................................................................................................... 22 c. Cardenas v. United States....................................................................................................... 23 d. Santos v. Lynch....................................................................................................................... 25 2. Special Immigrant Visa Programs: Nine Iraqi Allies v. Kerry ......................................................... 27 3. Visa Waiver Program.................................................................................................................. 33 4. Visa Restrictions and Limitations ................................................................................................ 34 a. Caribbean .............................................................................................................................. 34 b. Revised definition of “immediate family” for certain visas ...................................................... 35 5. Removals and Repatriations ....................................................................................................... 36 C. ASYLUM, REFUGEE, AND MIGRANT PROTECTION ISSUES ............................................................. 36 1. Temporary Protected Status ...................................................................................................... 36 a. South Sudan ........................................................................................................................... 37 b. Sudan ..................................................................................................................................... 37 c. Guinea ................................................................................................................................... 38 d. Liberia .................................................................................................................................... 38 e. Sierra Leone ........................................................................................................................... 38 f. Honduras ............................................................................................................................... 39 g. Nicaragua .............................................................................................................................. 39 h. El Salvador ............................................................................................................................. 39 iv 1. International Criminal Court..................................................................................................... 113 a. Overview .............................................................................................................................. 113 b. Assembly of States Parties .................................................................................................... 115 c. Central African Republic ....................................................................................................... 117 d. ICC Case on Destruction of Cultural Sites in Mali ................................................................... 118 e. Sudan ................................................................................................................................... 119 f. Libya .................................................................................................................................... 121 2. International Criminal Tribunals for the Former Yugoslavia and Rwanda and the Mechanism for International Criminal Tribunals ....................................................................................................... 124 a. General ................................................................................................................................ 124 b. International Criminal Tribunal for the Former Yugoslavia .................................................... 128 c. UN Mechanism for International Criminal Tribunals (“MICT”) ............................................... 129 3. Other Tribunals and Bodies ...................................................................................................... 130 Extraordinary African Chambers .................................................................................................. 130 Cross References ................................................................................................................................. 132 CHAPTER 4 ......................................................................................................................................... 133 Treaty Affairs .................................................................................................................................... 133 A. CONCLUSION, ENTRY INTO FORCE, AND RESERVATIONS ............................................................ 133 1. Treaties and International Agreements Generally .................................................................... 133 2. Treaties Transmitted to the Senate .......................................................................................... 144 3. Senate Advice and Consent to Ratification of Treaties .............................................................. 145 4. ILC Work on the Law of Treaties ............................................................................................... 145 B. TREATY AMENDMENT ............................................................................................................. 148 South Pacific Tuna Treaty ............................................................................................................. 148 C. LITIGATION INVOLVING TREATY LAW ISSUES .............................................................................. 150 1. Abu Khatallah .......................................................................................................................... 150 2. Litigation Regarding U.S.-Colombia Extradition Treaty.............................................................. 153 Cross References ................................................................................................................................. 157 CHAPTER 5 ......................................................................................................................................... 158 Foreign Relations ............................................................................................................................... 158 A. LITIGATION INVOLVING NATIONAL SECURITY AND FOREIGN POLICY ISSUES .............................. 158 1. Meshal v. Higgenbotham ......................................................................................................... 158 v 2. Sokolow ................................................................................................................................... 161 B. ALIEN TORT STATUTE AND TORTURE VICTIM PROTECTION ACT ................................................. 162 1. Overview ................................................................................................................................. 162 2. ATS and TVPA Cases Post-Kiobel............................................................................................... 162 a. Warfaa v. Ali......................................................................................................................... 162 b. Doğan v. Barak ..................................................................................................................... 163 C. POLITICAL QUESTION DOCTRINE, COMITY, AND FORUM NON CONVENIENS .......................... 164 1. Political Question: Lawsuits Seeking Evacuation From Yemen ................................................. 164 2. Political Question: Center for Biological Diversity et al. v. Hagel .............................................. 172 3. Political Question and Standing: Lin v. United States ............................................................... 180 4. Political Question: He Nam You v. Japan .................................................................................. 184 5. Comity, Forum Non Conveniens, and Political Question: Cooper v. TEPCO ................................ 186 D. EXTRATERRITORIAL APPLICATION OF U.S. CONSTITUTION ..................................................... 192 1. Hernandez ............................................................................................................................... 192 2. Rodriguez ................................................................................................................................. 192 Cross References ................................................................................................................................. 193 CHAPTER 6 ......................................................................................................................................... 194 Human Rights .................................................................................................................................... 194 A. GENERAL ..................................................................................................................................... 194 1. Country Reports on Human Rights Practices ............................................................................ 194 2. UPR Working Groups............................................................................................................... 194 3. Human Rights Council .............................................................................................................. 195 a. Overview .............................................................................................................................. 195 b. Actions regarding Eritrea ...................................................................................................... 197 c. Actions regarding Syria ........................................................................................................ 198 d. Actions regarding South Sudan ............................................................................................. 198 e. Actions regarding Burundi .................................................................................................... 199 B. DISCRIMINATION ........................................................................................................................ 200 1. Race ......................................................................................................................................... 200 Human Rights Council .................................................................................................................. 200 2. Gender .................................................................................................................................... 202 a. General Assembly ................................................................................................................. 202 vi b. U.S. Actions on Women, Peace, and Security ........................................................................ 204 c. Human Rights Council .......................................................................................................... 210 3. Sexual Orientation and Gender Identity ................................................................................... 211 Human Rights Council .................................................................................................................. 211 C. CHILDREN .................................................................................................................................... 212 1. Rights of the Child .................................................................................................................... 212 a. Periodic Report on the Optional Protocols to the Convention on the Rights of the Child ........ 212 b. Human Rights Council .......................................................................................................... 214 c. UN General Assembly ........................................................................................................... 215 2. Children and Armed Conflict .................................................................................................... 218 a. Child Soldiers—South Sudan ................................................................................................. 218 b. Child Soldiers Prevention Act ................................................................................................ 218 D. SELF-DETERMINATION ................................................................................................................ 219 E. ECONOMIC, SOCIAL, AND CULTURAL RIGHTS .............................................................................. 222 1. Food ........................................................................................................................................ 222 2. Housing ................................................................................................................................... 224 3. Water, Peace, and Security ...................................................................................................... 226 4. Education................................................................................................................................. 228 F. RESPONSIBLE BUSINESS CONDUCT ............................................................................................. 228 G. INDIGENOUS ISSUES.................................................................................................................... 229 1. EMRIP Reform.......................................................................................................................... 229 2. Enhanced Participation ............................................................................................................ 240 3. American Declaration on the Rights of Indigenous Peoples ...................................................... 251 4. Annual Thematic Resolutions at the HRC and UN General Assembly ........................................ 252 H. TORTURE AND OTHER CRUEL, INHUMAN, OR DEGRADING TREATMENT OR PUNISHMENT ........ 253 I. FREEDOM OF ASSEMBLY AND ASSOCIATION .............................................................................. 253 J. FREEDOM OF EXPRESSION .......................................................................................................... 254 K. FREEDOM OF RELIGION ............................................................................................................... 255 1. Designations under the International Religious Freedom Act ................................................... 255 2. U.S. Annual Report ................................................................................................................... 255 3. U.S. Congressional Hearing ...................................................................................................... 256 4. New U.S. Legislation on International Religious Freedom ......................................................... 259 ix b. Alimanestianu ...................................................................................................................... 350 Cross References ................................................................................................................................. 357 CHAPTER 9 ......................................................................................................................................... 358 Diplomatic Relations, Succession, Continuity of States, ................................................................... 358 and Other Statehood Issues ............................................................................................................... 358 A. DIPLOMATIC RELATIONS .............................................................................................................. 358 1. Burma ...................................................................................................................................... 358 2. Somalia .................................................................................................................................... 361 3. Cuba ........................................................................................................................................ 363 4. Russia ...................................................................................................................................... 368 B. STATUS ISSUES............................................................................................................................. 369 1. Ukraine .................................................................................................................................... 369 2. Georgia .................................................................................................................................... 374 3. Libya ........................................................................................................................................ 374 Cross References ................................................................................................................................. 379 CHAPTER 10 ....................................................................................................................................... 380 Privileges and Immunities ................................................................................................................. 380 A. AMENDMENTS TO THE FOREIGN SOVEREIGN IMMUNITIES ACT ................................................. 380 1. Justice Against Sponsors of Terrorism Act ................................................................................ 380 2. Foreign Cultural Exchange Jurisdictional Immunity Clarification Act ......................................... 389 B. FOREIGN SOVEREIGN IMMUNITIES ACT LITIGATION ................................................................... 389 1. Application of the FSIA in Enforcement of ICSID Arbitration Awards ......................................... 390 2. Exceptions to Immunity from Jurisdiction: Commercial Activity................................................ 396 a. Odhiambo v. Kenya .............................................................................................................. 396 b. Helmerich & Payne v. Venezuela .......................................................................................... 402 3. Expropriation Exception to Immunity: Standard for Establishing Jurisdiction ............................ 406 4. Exceptions to Immunity from Jurisdiction: Torts and Terrorism ................................................ 415 5. Service of Process .................................................................................................................... 420 a. Harrison v. Sudan ................................................................................................................. 420 b. Court practice of mailing documents to the Mexican Embassy .............................................. 420 c. Fu Yu Xia v. Parkinson........................................................................................................... 423 d. Hmong I v. Lao People’s Democratic Republic ...................................................................... 425 x 6. Execution of Judgments against Foreign States and Other Post-Judgment Actions ................... 427 a. Restrictions on the Attachment of Property under the FSIA and TRIA .................................... 427 b. Post-judgment discovery into foreign state assets: Chabad ................................................... 439 C. IMMUNITY OF FOREIGN OFFICIALS ............................................................................................. 450 1. Overview ................................................................................................................................. 450 2. Warfaa v. Ali ............................................................................................................................ 450 3. Immunity of Former Defense Minister of Israel ........................................................................ 450 4. Immunity of Rabbinical Judges and Administrator .................................................................... 452 D. HEAD OF STATE IMMUNITY ......................................................................................................... 456 1. President and Foreign Minister of Burma ................................................................................. 456 2. President and Prime Minister of Laos ....................................................................................... 459 3. Emperor and Prime Minister of Japan ...................................................................................... 460 E. DIPLOMATIC, CONSULAR, AND OTHER PRIVILEGES AND IMMUNITIES ....................................... 461 1. Foreign Litigation ..................................................................................................................... 461 2. Determinations under the Foreign Missions Act ....................................................................... 462 3. Enhanced Consular Immunities ................................................................................................ 463 F. INTERNATIONAL ORGANIZATIONS .............................................................................................. 463 1. Georges v. United Nations ........................................................................................................ 463 2. Zuza v. OHR ............................................................................................................................. 468 3. Koumoin v. Ban Ki-Moon .......................................................................................................... 471 Cross References ................................................................................................................................. 476 CHAPTER 11 ....................................................................................................................................... 477 Trade, Commercial Relations, Investment, and Transportation ..................................................... 477 A. TRANSPORTATION BY AIR ........................................................................................................... 477 1. Air Transport Agreements ........................................................................................................ 477 2. Aviation Arrangement with Cuba ............................................................................................. 478 3. Preclearance Agreement with Sweden ..................................................................................... 478 4. Foreign Air Carrier Permit for Norwegian Air International and Norwegian UK ......................... 479 5. Investigation of the Downing of Malaysia Airlines Flight MH17 in Ukraine ................................ 483 6. ICAO Settlement of Differences Proceedings: Brazil and the United States ............................... 483 B. INVESTMENT DISPUTE RESOLUTION UNDER FREE TRADE AGREEMENTS .................................... 484 xi 1. Non-Disputing Party Submissions under Chapter 11 of the North American Free Trade Agreement.. .................................................................................................................................... 484 a. Windstream v. Canada ......................................................................................................... 484 b. Eli Lilly & Co. v. Canada......................................................................................................... 485 2. Non-Disputing Party Submissions under other Trade Agreements ............................................ 490 a. Aven v. Costa Rica ................................................................................................................ 490 b. Corona v. Dominican Republic .............................................................................................. 491 C. WORLD TRADE ORGANIZATION .................................................................................................. 493 1. Dispute Settlement .................................................................................................................. 493 a. Disputes brought by the United States .................................................................................. 494 b. Disputes brought against the United States .......................................................................... 496 2. WTO Declaration on Expansion of Trade in IT Products ............................................................ 498 3. WTO Accessions ....................................................................................................................... 499 D. TRADE AGREEMENTS AND TRADE-RELATED ISSUES .................................................................. 499 1. Trade Agreements................................................................................................................... 499 a. Trans-Pacific Partnership ...................................................................................................... 499 b. Trans-Atlantic Trade and Investment Partnership ................................................................. 500 2. Trade Legislation and Trade Preferences .................................................................................. 501 a. Generalized System of Preferences ....................................................................................... 501 b. AGOA ................................................................................................................................... 501 3. Trade-related Arbitration and Litigation ................................................................................... 502 Dominican Republic-Central America-United States Free Trade Agreement .................................. 502 E. TAXATION ................................................................................................................................... 502 1. Tax Treaties ............................................................................................................................. 502 2. FATCA ...................................................................................................................................... 503 F. LOAN GUARANTEES .................................................................................................................... 504 G. TELECOMMUNICATIONS, DATA PRIVACY, and CYBER ISSUES ..................................................... 504 1. Transatlantic Commercial Data Transfers ................................................................................. 504 2. Weinstein v. Iran: Attempt to attach Internet names and addresses......................................... 505 H. INTELLECTUAL PROPERTY ............................................................................................................ 507 1. Transmittal of Treaties ............................................................................................................. 507 2. Intellectual Property: Special 301 Report ................................................................................ 508 xiv 2. Colombia ................................................................................................................................. 580 3. Greece ..................................................................................................................................... 580 4. Bolivia ...................................................................................................................................... 581 5. Egypt ....................................................................................................................................... 581 6. Syria......................................................................................................................................... 581 B. CULTURAL PROPERTY: LEGISLATION ........................................................................................... 582 C. EDUCATIONAL EXCHANGE .......................................................................................................... 582 D. EXCHANGE VISITOR PROGRAM ................................................................................................... 582 1. ASSE Litigation ......................................................................................................................... 582 2. Ireland ..................................................................................................................................... 583 E. GLOBAL ENGAGEMENT CENTER .................................................................................................. 583 F. INTERNATIONAL EXPOSITIONS .................................................................................................... 584 1. 2017 World Expo in Astana, Kazakhstan ................................................................................... 584 2. Proposed Minnesota World Expo 2023 .................................................................................... 584 G. IMMUNITY OF ART AND OTHER CULTURAL OBJECTS .................................................................. 585 Cross References ................................................................................................................................. 586 CHAPTER 15 ....................................................................................................................................... 587 Private International Law ................................................................................................................. 587 A. COMMERCIAL LAW/UNCITRAL .................................................................................................... 587 1. General .................................................................................................................................... 587 2. UNCITRAL ................................................................................................................................ 593 3. UNCITRAL Treaty Transmittals.................................................................................................. 594 4. Hague Securities Convention.................................................................................................... 598 B. FAMILY LAW ................................................................................................................................ 602 Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance ................................................................................................................................... 602 C. INTERNATIONAL CIVIL LITIGATION .............................................................................................. 603 1. COMMISA v. PEP ...................................................................................................................... 603 2. DA Terra Siderurgica LTDA v. American Metals International ................................................... 605 3. Belize v. Belize Social Development Ltd. .................................................................................... 613 Cross References ................................................................................................................................. 620 CHAPTER 16 ....................................................................................................................................... 621 xv Sanctions, Export Controls, and Certain Other Restrictions........................................................... 621 A. IMPOSITION, IMPLEMENTATION, AND MODIFICATION OF SANCTIONS ..................................... 621 1. Iran .......................................................................................................................................... 621 a. The Joint Comprehensive Plan of Action (“JCPOA”) ............................................................... 621 b. Implementation of UN Security Council resolutions ............................................................... 623 c. U.S. sanctions and other controls.......................................................................................... 624 2. Syria......................................................................................................................................... 625 3. Cuba ........................................................................................................................................ 626 Amendments to the Cuban Assets Control Regulations ................................................................. 626 4. Sudan ...................................................................................................................................... 627 5. Democratic People’s Republic of Korea .................................................................................... 628 a. Human rights ....................................................................................................................... 628 b. Nonproliferation................................................................................................................... 629 c. Iran, North Korea, and Syria Nonproliferation Act ................................................................. 647 6. Terrorism ................................................................................................................................. 648 a. UN and other coordinated multilateral action ...................................................................... 648 b. U.S. targeted financial sanctions .......................................................................................... 648 c. Annual certification regarding cooperation in U.S. antiterrorism efforts ............................... 656 7. Russia and Ukraine................................................................................................................... 656 a. Sanctions in response to Russia’s actions in Ukraine ............................................................. 656 b. Magnitsky Act ...................................................................................................................... 657 8. Iraq .......................................................................................................................................... 658 9. Targeted Sanctions Relating to Threats to Democratic Process and Restoration of Peace, Security, and Stability .................................................................................................................................... 658 a. Burundi ................................................................................................................................ 658 b. Democratic Republic of Congo .............................................................................................. 658 c. Burma .................................................................................................................................. 658 d. Zimbabwe ........................................................................................................................... 660 e. Liberia .................................................................................................................................. 660 f. South Sudan ......................................................................................................................... 662 g. Central African Republic ....................................................................................................... 664 h. Côte d’Ivoire ......................................................................................................................... 665 xvi i. Libya .................................................................................................................................... 666 j. Balkans ................................................................................................................................ 666 10. Transnational Crime ............................................................................................................. 666 11. Malicious Activities in Cyberspace ........................................................................................ 666 B. EXPORT CONTROLS ..................................................................................................................... 667 1. Export Control Litigation .......................................................................................................... 667 a. Goldstein v. Dept. of State.................................................................................................... 667 b. Defense Distributed v. U.S. Dept. of State ............................................................................ 668 c. Leo Combat, LLC v. U.S. Dept. of State .................................................................................. 675 d. Stagg P.C. v. U.S. Dept. of State ............................................................................................ 677 e. Rocky Mountain Instrument Co. ........................................................................................... 679 f. Microwave Engineering Co. .................................................................................................. 680 g. Turi ...................................................................................................................................... 680 2. Export Control Reform ............................................................................................................. 681 Cross References ................................................................................................................................. 685 CHAPTER 17 ....................................................................................................................................... 686 International Conflict Resolution and Avoidance ............................................................................ 686 A. MIDDLE EAST PEACE PROCESS ..................................................................................................... 686 B. PEACEKEEPING AND CONFLICT RESOLUTION ............................................................................... 704 1. Sexual exploitation and abuse by UN peacekeepers ................................................................. 704 2. Syria......................................................................................................................................... 713 3. Burundi .................................................................................................................................... 739 4. Colombia ................................................................................................................................. 745 5. Mali ......................................................................................................................................... 752 6. Democratic Republic of the Congo ........................................................................................... 755 7. South Sudan............................................................................................................................. 756 8. Sudan ...................................................................................................................................... 761 9. Nagorno-Karabakh ................................................................................................................... 764 10. Yemen.................................................................................................................................. 766 C. CONFLICT AVOIDANCE AND ATROCITIES PREVENTION ................................................................. 770 1. Protecting Civilians................................................................................................................... 770 2. Atrocities Prevention ............................................................................................................... 773 xix Introduction It is my pleasure to introduce the 2016 edition of the Digest of United States Practice in International Law. The State Department publishes the on-line Digest to make U.S. views on international law quickly and readily accessible to our counterparts in other governments, and to international organizations, scholars, students, and other users, both within the United States and around the world. This volume includes key speeches Legal Adviser Brian J. Egan delivered during 2016. Mr. Egan spoke on the future of international agreements at Yale Law School, where Deputy National Security Adviser Avril Haines also spoke on the importance of treaties. He responded to the work of the International Law Commission on protection of persons in the event of disasters; identification of customary international law; and subsequent agreements and subsequent practice in relation to the interpretation of treaties. He also delivered a talk entitled “The Next Fifty Years of the Outer Space Treaty” at a space law symposium; addressed the International Bar Association on the subject of private international law; discussed international law, legal diplomacy, and the counter-ISIS campaign at the annual meeting of the American Society of International Law (“ASIL”); and spoke at Berkeley Law School on international law and stability in cyberspace. In addition to Mr. Egan’s speeches, other representatives of the U.S. government explained U.S. international legal views on current world events in 2016. Secretary of State John Kerry announced that, in his judgment, ISIS is responsible for genocide in Iraq against groups in areas under its control, including Yezidis, Christians, and Shia Muslims, and for crimes against humanity and ethnic cleansing directed at these same groups and in some cases also against Sunni Muslims, Kurds, and other minorities. The United States responded to papers China circulated after the decision in the arbitration between the Philippines and China on the South China Sea with a diplomatic note identifying contradictions between China’s claims and the international law of the sea. The United States also sent a diplomatic note to the Republic of the Marshall Islands regarding U.S. sovereignty over Wake Island. And the Obama administration issued its Report on the Legal and Policy Frameworks Guiding the United States’ Use of Military Force and Related National Security Operations. All of these enunciations of U.S. legal views contributed to efforts to promote understanding of and compliance with international law. There were numerous developments in 2016 relating to U.S. international agreements and treaties at all stages, from negotiation to entry into force. The President transmitted eleven treaties to the U.S. Senate for its advice and consent to ratification in 2016, including extradition treaties, two intellectual property treaties, several private international law treaties, maritime boundary treaties, and the Arms Trade Treaty. The Senate provided its advice and consent to ratification of seven treaties in 2016, including extradition treaties, mutual legal assistance treaties, the International Treaty on Plant Genetic Resources for Food an Agriculture, and the Convention on the Law Applicable to Certain Rights in Respect of Securities Held with an xx Intermediary (the “Hague Securities Convention”). The United States ratified and joined the Agreement on Port State Measures to Prevent, Deter, and Eliminate Illegal, Unreported, and Unregulated Fishing, and the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance in 2016. And on January 16, 2016, the 2015 Joint Comprehensive Plan of Action with Iran (“JCPOA”) reached its “Implementation Day,” when the International Atomic Energy Agency confirmed that Iran had satisfied the required nuclear commitments and the United States and European Union took steps to lift nuclear-related sanctions against Iran. The United States signed new extradition treaties with Kosovo and Serbia; an agreement “On the Protection of Personal Information Relating to the Prevention, Investigation, Detention, and Prosecution of Criminal Offenses” (“DPPA”) with the European Union; an asset sharing agreement with Colombia; several air transport agreements; and agreements pursuant to the 1970 UNESCO Convention on cultural property. The United States successfully led the way to renegotiate the South Pacific Tuna Treaty and amend the Montreal Protocol to phase down the production and consumption of hydrofluorocarbons (“HFCs”). And, the President also submitted to Congress for its review an Agreement for Cooperation with Norway Concerning Peaceful Uses of Nuclear Energy. In the area of diplomatic relations, the United States engaged with Cuba in claims talks, conclusion of an aviation arrangement, and amendments to the Cuban Assets Control Regulations, among other initiatives. As a reflection of Burma’s democratic transition, the United States terminated the national emergency with respect to Burma, which had provided the basis for economic and financial sanctions. Also in 2016, the President terminated the national emergency with respect to Côte d’Ivoire. And in 2016, the United States swore in its first ambassador to Somalia in a quarter century after recognizing the government of Somalia in 2013. The United States took several steps in response to Russian interference in the 2016 U.S. election and increasing Russian harassment of U.S. diplomats overseas. In the area of human rights, the United States followed up on its accepted recommendations after its 2015 Universal Periodic Review (“UPR”) before the UN Human Rights Council by organizing six interagency UPR working groups to consult with civil society and discuss and coordinate implementation efforts during 2016. The United States submitted to the Committee on the Rights of the Child its Combined Third and Fourth Periodic Reports on the Optional Protocols to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict and the Sale of Children, Child Prostitution, and Child Pornography. And the United States supported the adoption by the Human Rights Council of a resolution on the human rights of lesbian, gay, bisexual, and transgender (“LGBT”) persons, creating an independent expert on violence and discrimination based on sexual orientation and gender identity. U.S. leadership was critical to reforming the Expert Mechanism on the Rights of Indigenous Peoples (“EMRIP”) and to efforts toward enhancing the participation of indigenous peoples in relevant UN bodies. The U.S. government also participated in litigation and arbitration involving issues related to foreign policy and international law in 2016. The United States government filed briefs xxi in cases before the U.S. Supreme Court, including Lynch v. Morales-Santana, regarding when a child born abroad out of wedlock should be granted U.S. citizenship at birth; Tuaua v. United States, addressing the argument that U.S. nationals residing in American Samoa—an “outlying possession” of the United States—should be granted U.S. citizenship; Thomas v. Lynch, examining whether children born on U.S. military bases abroad are citizens at birth; Meshal v. Higgenbotham, opposing review of the appeals court decision that factors including extraterritoriality, national security, and foreign policy make unavailable a Bivens remedy for detention and interrogation in foreign countries in the context of counterterrorism investigations; Venezuela v. Helmerich & Payne, Helmerich & Payne v. Venezuela, and Odhiambo v. Kenya, regarding the appropriate standard for establishing jurisdiction under the Foreign Sovereign Immunities Act and interpretation of the expropriation and commercial activity exceptions to immunity; and Belize v. Belize Social Development Ltd., involving issues related to the enforcement of an arbitral award. The United States also participated in several cases in the aftermath of the 2015 Supreme Court decision in Kerry v. Din, confirming the doctrine of consular nonreviewability with the application of the “facially legitimate and bona fide reason” standard articulated in Din. The United States and Iran settled an outstanding claim at the Iran- U.S. Claims Tribunal in The Hague regarding the $400 million Trust Fund for military sales. The Digest also discusses U.S. participation in international organizations, institutions, and initiatives. At the United Nations, the United States joined in adopting the New Urban Agenda at the Habitat III conference on housing and, separately, the New York Declaration for Refugees and Migrants. In the Security Council, U.S. priorities and efforts were reflected in Resolution 2322 on information sharing and international judicial cooperation to counter threats caused by terrorist acts; as well as resolutions on North Korea, establishing the strongest sanctions the Security Council has imposed in more than two decades in response to nuclear tests and ballistic missile launches. Regarding the International Criminal Court (“ICC”), the United States welcomed the conviction of Ahmed al-Mahdi for intentional destruction of cultural property in Mali; the opening of the trial of Dominic Ongwen, of the Lord’s Resistance Army; and the conviction of Jean-Pierre Bemba for war crimes and crimes against humanity, including rape, as well as the subsequent additional conviction of Bemba and four associates for offenses against the administration of justice, including witness intimidation. The United States also welcomed the conviction of Radovan Karadzic by the International Criminal Tribunal for the Former Yugoslavia. The United States was a strong supporter of the Extraordinary African Chambers proceedings that led to the conviction of former Chadian President Habré, the newly created Specialist Chambers in Kosovo, and the Special Criminal Court being developed by authorities in the Central African Republic. At the Inter-American Commission on Human Rights (“IACHR”), the United States responded to petitions and participated in hearings in 2016. U.S. voluntary contributions to the IACHR in 2016 kept the IACHR fully operative, but the United States also prevailed on the Commission to adopt new management procedures in the fall of 2016 and reduce its backlog. The United States government accepted an amendment to the International Monetary Fund (“IMF”) Articles of Agreement to reform its Executive Board and xxiv The U.S. Government Printing Office (“GPO”) provides electronic access to government publications, including the Federal Register and Code of Federal Regulations; the Congressional Record and other congressional documents and reports; the U.S. Code, Public and Private Laws, and Statutes at Large; Public Papers of the President; and the Daily Compilation of Presidential Documents. The Federal Digital System, available at https://www.gpo.gov/fdsys/, is GPO’s online site for U.S. government materials. On treaty issues, this site offers Senate Treaty Documents (for the President’s transmittal of treaties to the Senate for advice and consent, with related materials), available at https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CDOC, and Senate Executive Reports (for the reports on treaties prepared by the Senate Committee on Foreign Relations), available at https://www.gpo.gov/fdsys/browse/collection.action?collectionCode=CRPT. In addition, the Office of the Legal Adviser provides a wide range of current treaty information at http://www.state.gov/s/l/treaty and the Library of Congress provides extensive treaty and other legislative resources at https://www.congress.gov. The U.S. government’s official web portal is https://www.usa.gov, with links to government agencies and other sites; the State Department’s home page is http://www.state.gov. While court opinions are most readily available through commercial online services and bound volumes, individual federal courts of appeals and many federal district courts now post opinions on their websites. The following list provides the website addresses where federal courts of appeals post opinions and unpublished dispositions or both: U.S. Court of Appeals for the District of Columbia Circuit: https://www.cadc.uscourts.gov/bin/opinions/allopinions.asp; U.S. Court of Appeals for the First Circuit: http://www.ca1.uscourts.gov/opinions/main.php; U.S. Court of Appeals for the Second Circuit: http://www.ca2.uscourts.gov/decisions.html; U.S. Court of Appeals for the Third Circuit: http://www.ca3.uscourts.gov/search-opinions; U.S. Court of Appeals for the Fourth Circuit: http://pacer.ca4.uscourts.gov/opinions/opinion.htm; U.S. Court of Appeals for the Fifth Circuit: http://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions; U.S. Court of Appeals for the Sixth Circuit: http://www.ca6.uscourts.gov/opinions/opinion.php; U.S. Court of Appeals for the Seventh Circuit: http://media.ca7.uscourts.gov/opinion.html; U.S. Court of Appeals for the Eighth Circuit: http://www.ca8.uscourts.gov/all-opinions; U.S. Court of Appeals for the Ninth Circuit: www.ca9.uscourts.gov/opinions/ (opinions) and www.ca9.uscourts.gov/memoranda/ (memoranda and orders—unpublished dispositions); xxv U.S. Court of Appeals for the Tenth Circuit: http://www.ca10.uscourts.gov/clerk/opinions/daily; U.S. Court of Appeals for the Eleventh Circuit: http://www.ca11.uscourts.gov/published-opinions; U.S. Court of Appeals for the Federal Circuit: http://www.cafc.uscourts.gov/opinions-orders/0/all. The official U.S. Supreme Court website is maintained at www.supremecourtus.gov. The Office of the Solicitor General in the Department of Justice makes its briefs filed in the Supreme Court available at https://www.justice.gov/osg. Many federal district courts also post their opinions on their websites, and users can access these opinions by subscribing to the Public Access to Electronic Records (“PACER”) service. Other links to individual federal court websites are available at http://www.uscourts.gov/about- federal-courts/federal-courts-public/court-website-links. Selections of material in this volume were made based on judgments as to the significance of the issues, their possible relevance for future situations, and their likely interest to government lawyers, especially our foreign counterparts; scholars and other academics; and private practitioners. As always, we welcome suggestions from those who use the Digest. CarrieLyn D. Guymon 1 CHAPTER 1 Nationality, Citizenship, and Immigration A. NATIONALITY, CITIZENSHIP, AND PASSPORTS 1. Derivative Citizenship: Morales-Santana As discussed in Digest 2015 at 1-6, the Morales-Santana case involves the constitutionality of the statutory provisions governing when a child born abroad out of wedlock is granted U.S. citizenship at birth. Plaintiff Morales-Santana was born out of wedlock in the Dominican Republic to a Dominican mother and a U.S. citizen father. His U.S. citizen father did not have the physical presence required under the relevant provision of the Immigration and Nationality Act (“INA”) to transmit U.S. citizenship to Morales-Santana; later, while living in the United States as a lawful permanent resident, Morales-Santana committed a crime and was ordered deported. Morales-Santana challenged the deportation, arguing that the differing requirements for out of wedlock citizen fathers and mothers to transmit U.S. citizenship violate the Fifth Amendment’s equal protection clause. The Court of Appeals for the Second Circuit invalidated the ten- year physical presence requirement for out of wedlock fathers, requiring them to instead show the same one-year continuous physical presence required for out of wedlock mothers. The U.S. request for en banc review in the Court of Appeals was denied. On March 22, 2016, the United States filed a petition for a writ of certiorari, which the Supreme Court granted on June 28, 2016. Lynch v. Morales-Santana, No. 15- 1191. The U.S. brief submitted to the Supreme Court on August 19, 2016, seeking reversal of the Second Circuit’s decision, is excerpted below (with footnotes omitted). The case was argued before the Supreme Court on November 9, 2016. ___________________ * * * * …The court of appeals … erred in holding that the relevant provisions of 8 U.S.C. 1401 and 1409 violate equal protection. The court compounded its error when it remedied the perceived constitutional problem by extending U.S. citizenship to respondent—and to an untold number of 4 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW * * * * …Before the 1940 Act, none of the laws granting citizenship to foreign-born children had expressly addressed the status of children born abroad out of wedlock. … …Congress took up that issue in its overhaul of the Nation’s nationality laws in 1940. The first paragraph of Section 205 of the 1940 Act stated that “[t]he provisions of section 201” (which set forth the rules applicable to foreign-born children of married parents) “hereof apply, as of the date of birth, to a child born out of wedlock, provided the paternity is established during minority, by legitimation, or adjudication of a competent court.” 1940 Act § 205, 54 Stat. 1139. The second paragraph of Section 205 further stated that, “[i]n the absence of such legitimation or adjudication, the child, whether born before or after the effective date of this Act, if the mother had the nationality of the United States at the time of the child’s birth, and had previously resided in the United States or one of its outlying possessions, shall be held to have acquired at birth her nationality status.” 1940 Act § 205, 54 Stat. 1140 (emphasis added). The first paragraph of Section 205 thus treated children born out of wedlock to U.S.- citizen mothers and those born to U.S.-citizen fathers the same (in terms of a physical-connection or residence requirement) in cases where the father legitimated the child before the child reached the age of majority—treating the children as if their parents had been married when the child was born. If both parents were U.S. citizens, the more lenient rule in Section 201(c) applied, requiring only prior U.S. residence by one parent. But if, as in respondent’s case, only one parent was a U.S. citizen, the longer residence requirements in Section 201(g) applied, just as they would have if the child’s parents had been married when the child was born. But in addition to that general rule, the second paragraph of Section 205 provided that, when the unwed father (whether U.S.-citizen or alien) failed to take the steps necessary to legally establish his relationship to his child, the child was (at least retroactively) considered to have acquired U.S. citizenship from birth if the child’s unwed mother was a U.S. citizen and had previously resided in the United States or an outlying possession. But Section 205 was ambiguous in one important respect: the use of the phrase “in the absence of legitimation or adjudication” left open the possibility that the citizenship of a child born out of wedlock abroad to a U.S.-citizen mother could not be determined until either the child’s father legitimated him or he reached the age of majority, or that he would be divested of citizenship upon legitimation. See Matter of M—, 4 I. & N. Dec. 440, 442-445 (B.I.A. 1951). Under the 1940 Act, when a child had two legally recognized U.S.-citizen parents, Congress required only a minimal physical connection (prior residency of any length) between at least one U.S.-citizen parent and the United States. 1940 Act §§ 201(c), 205, 54 Stat. 1138-1139. A similarly minimal physical connection was deemed sufficient when a foreign-born child had only one legally recognized parent at birth and that parent was a U.S. citizen. 1940 Act § 205, 54 Stat. 1140. By contrast, when a foreign-born child had two legally recognized parents, only one of whom was a U.S. citizen—because his parents were married at the time of his birth or were unmarried but his father later legitimated him—Congress understood that the child would likely be subject to competing national loyalties. In those instances (like respondent’s), Congress required that the U.S.-citizen parent establish a stronger physical connection to the United States as a means of ensuring that the child would form a stronger cultural and emotional tie and allegiance to the United States to offset any competing connection to another country. A decade later, Congress revisited the subject of children born abroad out of wedlock when it enacted Section 309 of the INA, 66 Stat. 238 (8 U.S.C. 1409), in 1952. Congress made 5 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW two relevant changes: (1) it required that, in order for a child born abroad out of wedlock to a U.S.-citizen mother to be granted U.S. citizenship at birth, the mother must have been physically present in the United States for one continuous year (rather than merely residing in the United States at some point) before the child’s birth; and (2) made clear that the foreign-born child whose U.S.-citizen mother satisfied that physical-presence requirement would retain U.S. citizenship from birth regardless of whether his father later legitimated him. 8 U.S.C. 1409(a) and (c). The first change ensured a somewhat stronger connection between the U.S.-citizen mother and the United States in order for her child to obtain citizenship. The second change eliminated the qualifier “[i]n the absence of such legitimation or adjudication” that had created uncertainty in Section 205 of the 1940 Act, 54 Stat. 1140, which had granted citizenship from birth to a child born out of wedlock abroad to a U.S.-citizen mother. The new provision replaced that qualifier with the phrase “[n]otwithstanding the provision of ” subsection (a) of 8 U.S.C. 1409, which provided that the rule for the children of married parents would apply to the children of unmarried parents upon legitimation. That amendment made explicit that a child born out of wedlock to a U.S.-citizen mother could have his citizenship definitively determined at birth— without regard to whether the father’s paternity was later legally established, through legitimation, which otherwise could have triggered the ten- and five-year physical-presence requirements under Sections 1401(a)(7) and 1409(a) applicable when there were two parents of different nationalities. Although Section 1409(c) used gendered terms by referring to “the mother” of a child born out of wedlock, the differential treatment under that provision, as under the 1940 Act, turned on whether a foreign-born child had one legally recognized parent or two at the time of his birth. Respondent errs in disputing (Br. in Opp. 14-16) that, at the moment of birth, the mother of a child born out of wedlock was typically treated throughout the world as the child’s only legal parent. Although the father of such a child could establish a legally recognized relationship by marrying the mother or taking another step prescribed by law, in most of the world his relationship to his child was not legally recognized at the time of the child’s birth. … When Congress overhauled the Nation’s nationality laws in 1940, it understood that the mother of a child born out of wedlock is typically the only legally recognized parent at the time of the child’s birth. … Congress had before it a comprehensive study of foreign citizenship laws, undertaken by an Assistant to the Legal Adviser in the Department of State, which determined that 30 of the countries studied had enacted laws governing the citizenship of children born out of wedlock. The laws of 29 of those 30 countries provided that the child acquired the citizenship of his mother at birth (assuming the mother was a citizen of the relevant country), and in 19 of those 29 countries, the child would take the father’s citizenship upon legitimation. Durward V. Sandifer, A Comparative Study of Laws Relating to Nationality at Birth and to Loss of Nationality, 29 Am. J. Int’l L. 248, 258- 259 & n.38 (1935) (Sandifer) (cited in 1940 Hearings 431). The study recognized that in most countries a child could not obtain his father’s citizenship unless or until the father took “any act legally establishing filiation.” Id. at 258 (emphasis added). … This Court has similarly recognized that unwed U.S.-citizen mothers and unwed U.S.- citizen fathers are not similarly situated in every respect as regards their legal relationship to a child born out of wedlock. See Nguyen, 533 U.S. at 63; see also Lehr v. Robertson, 463 U.S. 248, 266-268 (1983); Parham v. Hughes, 441 U.S. 347, 355 (1979) (opinion of Stewart, J.); cf. 6 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2558-2559 (2013). Indeed, this Court explained in Nguyen that a “significant difference” exists “between the[] respective relationships” of those mothers and fathers “to the potential citizen at the time of birth.” 533 U.S. at 62. In particular, the Court explained that, while “the fact of parenthood” is established for an unwed mother “at the moment of birth,” id. at 68, “that legal determination with respect to fathers” may constitutionally be subject to “a different set of rules” because the two parents are not similarly situated, id. at 63. See Miller, 523 U.S. at 443 (Stevens, J.) (“[I]t is not merely the sex of the citizen parent that determines whether the child is a citizen under the terms of the statute; rather, it is an event creating a legal relationship between parent and child—the birth itself for citizen mothers, but postbirth conduct for citizen fathers and their offspring.”) (emphasis added). When respondent was born out of wedlock in the Dominican Republic, his mother was not a U.S. citizen, and respondent therefore had no legally recognized connection to the United States at all, much less a claim to U.S. citizenship. When respondent’s U.S.-citizen father later legitimated respondent by marrying respondent’s mother, respondent then had two legal parents, one of whom remained an alien. The general rule in 8 U.S.C. 1409(a) and 1401(a)(7) for that two-parent situation therefore applied. Respondent’s father thus was not similarly situated to a U.S.- citizen mother of a child born abroad out of wedlock, either when respondent was born or when his father later married his mother. A U.S.-citizen mother, at the time of her child’s birth, would have been a legally recognized parent and typically the only such parent, and there accordingly would have been no competing parental claim of a connection to a foreign country. By contrast, when respondent was born, he had no legal relationship to the U.S.-citizen father who later legitimated him, and therefore no legal relationship to the United States; and when his father did later legitimate him and thereby established a legal relationship with him for the first time, there were then two legally recognized parents, each with a different nationality. It was entirely reasonable for Congress to conclude that in that situation, assurance of a sufficient connection to the United States called for application of the general rule requiring ten- and five- years of physical presence in the United States by the U.S.-citizen parent that is applicable even to married couples of different nationalities. Because a U.S.-citizen mother and U.S.-citizen father were therefore not similarly situated in their relationship to a child born abroad out of wedlock, the separate provision in 8 U.S.C. 1409(c) for acquisition of citizenship by the child of an unwed U.S.-citizen mother does not violate equal protection, even under intermediate scrutiny. See Heckler v. Mathews, 465 U.S. 728, 745-750 (1984) (Mathews). C. The Rules Established By Sections 1401 and 1409 Are Substantially Related To The Government’s Important Interest In Reducing The Risk That A Foreign-Born Child Of A U.S. Citizen Would Be Born Stateless The challenged statutory provisions also served a second important interest: reducing the risk that the child of a U.S. citizen would be stateless at birth. Although the court of appeals acknowledged that reducing the risk of statelessness at birth is an important government interest, it erroneously concluded that such an interest did not justify the statutory provisions Congress enacted. Pet. App. 25a-34a. * * * * The differences embodied in the physical-presence requirements in Sections 1409 and 1401 reflect the reality that children born out of wedlock abroad to a U.S.-citizen mother were at 9 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW …The court of appeals dismissed the government’s interest in reducing the risk of statelessness based in part on speculation that the different physical-presence requirements “arguably reflect gender-based generalizations concerning who would care for and be associated with a child born out of wedlock.” Pet. App. 31a. The statutory scheme reflects no such gender- based generalizations. The challenged distinctions turned instead on rules establishing the legal status of parent and child, both abroad and in this country. The Constitution’s guarantee of equal protection does not require that Congress treat men and women the same when they are not similarly situated. See, e.g., Schlesinger v. Ballard, 419 U.S. 498, 508 (1975). And this Court has already held in Nguyen, a case also involving Section 1409, that unwed U.S.-citizen mothers and unwed U.S.- citizen fathers are not similarly situated in every respect as regards their legal relationship to a child born out of wedlock. See Nguyen, 533 U.S. at 63; see also Lehr, 463 U.S. at 266-268; Parham, 441 U.S. at 355 (opinion of Stewart, J.). The difference in each parent’s treatment under Section 1409(a) and (c) is attributable to what this Court in Nguyen described as the “significant difference between their respective relationships to the potential citizen at the time of birth,” 533 U.S. at 62, not to impermissible stereotypes. The court of appeals apparently speculated that the domestic and international laws that recognized the mother of a child born out of wedlock as the only legally recognized parent at the time of birth were developed based on stereotypes about which parent of such a child should care for and be responsible for the child. See Pet. App. 31a n.13. But such speculation about motivations for other laws here and abroad cannot be a basis for invalidating an Act of Congress, and Congress cannot be expected to ignore the relevant foreign and domestic laws that did exist. Indeed, Congress obviously has no authority to override the citizenship or paternity laws of other countries; and Congress has historically left it to the States to regulate familial relationships in the United States. Congress therefore did not engage in “impermissible stereotyping,” id. at 32a, when it legislated against the reality that, in most of the world (as in the United States), when a child was born out of wedlock, his mother was his only legally recognized parent at the time of birth and therefore the only possible source of citizenship through a legally recognized parent. …The implications of the constitutional rule respondent seeks could be far-reaching. If this Court were to find that Congress may not treat the parental relationship of unwed citizen fathers at the moment of a child’s birth differently than the parental relationship of unwed citizen mothers in the context of immigration and naturalization, where Congress has particularly broad discretion, there surely would be a flood of litigation contending that the States must revise their laws—including those governing adoption, inheritance, wrongful death, and residency—that similarly distinguish between those two relationships. Even today, the father of a child born out of wedlock anywhere in the United States must take some affirmative step to establish his legal status as the child’s father. For mothers, parental status is generally established by the act of giving birth. See Nguyen, 533 U.S. at 64. The fact that respondent’s arguments would call into question the constitutionality of laws in every State of the Union is an additional reason to reject respondent’s position. D. Congress Chose Appropriate Means To Achieve Its Important Interests In enacting the challenged laws, Congress faced a complex task: to craft a set of uniform rules that would apply to individuals not located in the United States and that would serve important, but sometimes competing, government interests. Even in the context of considering gender-based equal protection challenges in the domestic context, this Court has never required a perfect fit between means and ends. Flexibility is especially necessary in the context of 10 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW naturalization, where the rules Congress enacts must operate in combination with the rules of other nations—rules over which Congress has no control and that are likely to change over time. Here, as this Court concluded with respect to another aspect of Section 1409, “[t]he fit between the means [Congress chose] and the important end[s] is ‘exceedingly persuasive.’” Nguyen, 533 U.S. at 70 (quoting United States v. Virginia, 518 U.S. 515, 533 (1996)). …The court of appeals erroneously concluded that the government’s important interest in reducing statelessness was not sufficient to justify the statutory scheme because, it reasoned, “effective gender-neutral alternatives” were available at the time of the statute’s enactment. Pet. App. 32a. The court based that assertion exclusively on a 1933 proposal by then-Secretary of State Cordell Hull that would have amended the nationality laws to provide: A child hereafter born out of wedlock beyond the limits and jurisdiction of the United States and its outlying possessions to an American parent who has resided in the United States and its outlying possessions, there being no other legal parent under the law of the place of birth, shall have the nationality of such American parent. Id. at 33a (quoting Letter from Cordell Hull, Secretary of State, to Samuel Dickstein, Chairman, Comm. on Immigration & Naturalization (Mar. 27, 1933), reprinted in Relating to Naturalization and Citizenship Status of Children Whose Mothers Are Citizens of the United States, and Relating to the Removal of Certain Inequalities in Matters of Nationality: Hearings Before the House Comm. on Immigration and Naturalization, 73d Cong., 1st Sess. 8-9 (1933) (1933 Hearing)). The court of appeals erred in relying on Secretary Hull’s proposed amendment because the amendment, while gender-neutral on its face, would have applied in the same manner as Section 1409(c). It was only when the child was born out of wedlock to a U.S.-citizen mother that the child would have only one legally recognized parent. That was clear to observers at the time. See 1933 Hearing 56 (testimony of Burnita S. Williams, National Woman’s Party) (noting that “[w]hile the State Department has made this to read as though [the Hull proposal] were equal as to men and women, I think they have an idea that it would just apply to women”). For purposes of assessing respondent’s equal protection challenge, the salient fact is how the challenged law operates, not the words it uses. As this Court explained in Nguyen: The issue is not the use of gender specific terms instead of neutral ones. Just as neutral terms can mask discrimination that is unlawful, gender specific terms can mark a permissible distinction. The equal protection question is whether the distinction is lawful. Here, the use of gender specific terms takes into account a biological difference [and in this case, a legal difference] between the parents. The differential treatment is inherent in a sensible statutory scheme, given the unique relationship of the mother to the event of birth. 533 U.S. at 64. The court of appeals therefore erred in relying on a proposal Congress declined to adopt more than 80 years ago to invalidate a statutory framework that has governed the acquisition of U.S. citizenship in this context since 1940. During a hearing on Secretary Hull’s proposed amendment, moreover, Congress considered an objection (from a member of the National Women’s Party) to the amendment based on the fact that it would “require[]” State Department personnel “to know what the law is on the subject of illegitimacy in every country of the world” because “[t]hey would have to know what the law is on the subject of illegitimacy in order to determine whether or not at the place of birth there was a legal parent, or whether one or the other was a legal parent.” 1933 Hearing 56. Such a requirement, the witness testified, “would create an extraordinary situation” in which “we would not know where we were.” Ibid. As a practical matter, official determinations about the 11 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW U.S. citizenship of foreign-born children are often made many years after the child’s birth, as was the case here. A post-hoc inquiry into the laws and informal interpretations that a foreign nation applied many years earlier could be quite difficult. Such a system also would not have provided notice to an expectant U.S.-citizen parent about the consequences of choosing to have the child born abroad rather than in the United States. This court acknowledged in Nguyen that Congress has leeway in crafting citizenship laws to “enact[] an easily administered scheme,” 533 U.S. at 69, instead of requiring more specific inquiries. It is worth noting, moreover, that the provision suggested in 1934 would offer no help to respondent, who has never even suggested that he was stateless at the time of his birth in the Dominican Republic. * * * * …Finally, as this Court recognized in Nguyen, the rules set out in Sections 1401 and 1409 were not (and are not) the exclusive means by which a foreign-born child could become a U.S. citizen. Under Section 322(a) of the INA, 66 Stat. 246, for example, if the foreign-born child of a U.S.-citizen parent did not secure U.S. citizenship at birth because his parent(s) did not satisfy the applicable physical-presence requirement, the citizen parent could petition to naturalize the child if the child was under the age of 18 and was residing permanently in the United States in the custody of the citizen parent, pursuant to a lawful admission for permanent residence. 8 U.S.C. 1433(a) (1958). That option was presumably available to respondent’s father when respondent was admitted to the United States as a lawful permanent resident in 1975. And under current law, if the foreign-born child of one citizen parent does not secure U.S. citizenship at birth because that parent did not have sufficient physical presence in the United States, the child is automatically a citizen under 8 U.S.C. 1431(a) if the child moves to the United States before turning 18 and resides in the legal and physical custody of that parent pursuant to a lawful admission for permanent residence. In addition, a foreign-born child who does not qualify for citizenship at birth pursuant to Sections 1401 and 1409, but nevertheless develops substantial connections to the United States through permanent residence in the United States, may apply to become a naturalized citizen upon reaching age 18 through the standard naturalization procedures. See 8 U.S.C. 1423, 1427, 1445(b). Congress cannot be faulted if petitioner did not seek to take advantage of that process (or if he rendered himself ineligible by engaging in criminal activity, see Pet. App. 46a). … II. THE COURT OF APPEALS EXCEEDED ITS CONSTITUTIONAL AND STATUTORY AUTHORITY BY EXTENDING U.S. CITIZENSHIP TO RESPONDENT This Court has noted that, when a court sustains an equal protection claim, it “faces ‘two remedial alternatives: [it] may either declare [the statute] a nullity and order that its benefits not extend to the class that the legislature intended to benefit, or it may extend the coverage of the statute to include those who are aggrieved by the exclusion.’ ” Mathews, 465 U.S. at 738 (citation omitted; brackets in original). This general rule rests on the premise that the appropriate solution to the abridgment of the Constitution’s equal protection guarantee is to bring about equal treatment, “a result that can be accomplished by withdrawal of benefits from the favored class as well as by extension of benefits to the excluded class.” Id. at 740; see Miller, 523 U.S. at 458 (Scalia, J., concurring in the judgment) (“The constitutional vice consists of unequal treatment, which may as logically be attributed to the disparately generous provision (here, 14 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW (5th Cir. 2010) (per curiam) (same); Rabang v. INS, 35 F.3d 1449, 1451-1453 (9th Cir. 1994) (same), cert. denied, 515 U.S. 1130 (1995); see also Eche v. Holder, 694 F.3d 1026, 1027-1028, 1030-1031 (9th Cir. 2012) (construing “the United States” in the Naturalization Clause, U.S. Const. Art. I, § 8, Cl. 4, not to apply to the Northern Mariana Islands because “federal courts have repeatedly construed similar and even identical language in other clauses to include states and incorporated territories, but not unincorporated territories”), cert. denied, 133 S. Ct. 2825 (2013). Petitioners acknowledge (Pet. 34) that every court of appeals that has considered the question whether the Citizenship Clause applies to an unincorporated territory has held that it does not. 2. The court of appeals correctly concluded that persons born in American Samoa do not obtain citizenship at birth under the Citizenship Clause. The Clause extends citizenship to persons who are “born or naturalized in the United States” and “subject to the jurisdiction thereof.” U.S. Const. Amend. XIV, § 1, Cl. 1. By constitutional design, a U.S. territory is under the sovereignty of the United States, and Congress has plenary power to administer the territory. See U.S. Const. Art. IV, § 3, Cl. 2 (Territory Clause); Shively v. Bowlby, 152 U.S. 1, 48 (1894). Accordingly, persons born in the territories are “subject to the jurisdiction” of the United States. Cf. Elk v. Wilkins, 112 U.S. 94, 99-103 (1884) (explaining that members of Indian Tribes did not obtain citizenship under the Citizenship Clause because Tribes are not “subject to the jurisdiction” of the United States in the relevant sense). But there remains another, prior question: whether U.S. territories are “in the United States” for purposes of the Clause. a. The best reading of the Citizenship Clause is that U.S. territories are not “in the United States” within the meaning of the Clause because “in the United States” means in the 50 States and the District of Columbia. At the time the Constitution was adopted, “the United States” consisted of the 13 States, and the Constitution contemplated creation of a district carved out of those States to “become the Seat of the Government of the United States.” U.S. Const. Art. I, § 8, Cl. 17… The Constitution expressly distinguishes between States and territories of the United States. The Constitution reserves to the States all powers “not delegated to the United States by the Constitution, nor prohibited by it to the States,” U.S. Const. Amend. X, thereby recognizing that States have “sovereignty concurrent with that of the Federal Government,” Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Territories, on the other hand, are defined as lands “belonging to the United States” that are under the plenary authority of Congress. U.S. Const. Art. IV, § 3, Cl. 2 (Territory Clause). The Constitution itself therefore sets out a fundamental distinction between “the United States” and the territories belonging to the United States. Further, while the Citizenship Clause of the Fourteenth Amendment is confined to individuals born “in the United States, and subject to the jurisdiction thereof,” U.S. Const. Amend. XIV, § 1, Cl. 1 (emphasis added), the Thirteenth Amendment prohibits slavery “within the United States, or any place subject to their jurisdiction,” U.S. Const. Amend. XIII, § 1 (emphasis added). The Thirteenth Amendment’s broader language demonstrates that “there may be places subject to the jurisdiction of the United States but which are not incorporated into it, and hence are not within the United States in the completest sense of those words.” Downes v. Bidwell, 182 U.S. 244, 336-337 (1901) (White, J., concurring); see also id. at 251 (opinion of Brown, J.). At a minimum, this textual distinction underscores the soundness of the settled understanding that unincorporated territories, while subject to the jurisdiction of the United States, are not “in the United States” for purposes of the Citizenship Clause. 15 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW b. The meaning of “in the United States” under the Citizenship Clause is further informed by this Court’s decisions concerning application of the Constitution to U.S. territories. The Court has long recognized that the Constitution does not automatically apply in full to all territories of the United States. In the Insular Cases—a series of decisions about the application of the Constitution to territories the United States acquired at the turn of the 20th century, such as Puerto Rico, Guam, and the Philippines—the Court explained that the Constitution has more limited application in “unincorporated Territories” that are not intended for statehood than it does in States and “incorporated Territories surely destined for statehood.” Boumediene v. Bush, 553 U.S. 723, 756-757 (2008). In those cases, the Court set out a “general rule” that in an “unincorporated territory,” the Constitution does not necessarily apply in full. United States v. Verdugo-Urquidez, 494 U.S. 259, 268 (1990). Such a rule is necessary to provide the United States with flexibility in acquiring, governing, and relinquishing territories. For example, the Court has explained that some territories (such as the former Spanish colonies) operated under civil-law systems quite unlike our own, and in some cases, like the Philippines, “a complete transformation of the prevailing legal culture would have been not only disruptive but also unnecessary, as the United States intended to grant independence to that Territory.” Boumediene, 553 U.S. at 757-758. The Insular Cases invoked the distinction between incorporated and unincorporated territories both to determine the reach of constitutional provisions that are silent as to geographic scope, see, e.g., Dorr v. United States, 195 U.S. 138, 144-149 (1904) (Sixth Amendment jury- trial right), and to interpret constitutional provisions that specify a geographic reach, see Downes, 182 U.S. at 287 (opinion of Brown, J.) (Tax Uniformity Clause). Here, the Citizenship Clause confers citizenship on those born “in the United States,” and the Court’s decision in Downes confirms that “in the United States” excludes unincorporated territories. The particular question in Downes was whether the requirement that “all Duties, Imposts and Excises shall be uniform throughout the United States,” U.S. Const. Art. I, § 8, Cl. 1, applies to Puerto Rico, a U.S. territory. 182 U.S. at 249 (opinion of Brown, J.). The Court held that Puerto Rico is not part of “the United States” for purposes of that provision. Id. at 263, 277- 278, 287 (opinion of Brown, J.); id. at 341-342 (White, J., concurring); id. at 346 (Gray, J., concurring). … As particularly relevant here, the Court recognized in Downes that the Constitution should not be read to automatically confer citizenship on inhabitants of U.S. territories. Justice Brown explained that “the power to acquire territory by treaty implies not only the power to govern such territory, but to prescribe upon what terms the United States will receive its inhabitants.” 182 U.S. at 279; see id. at 306 (White, J., concurring); id. at 345-346 (Gray, J., concurring). The right to acquire territory “could not be practically exercised if the result would be to endow the inhabitants with citizenship of the United States.” Id. at 306 (White, J., concurring). The Justices in the majority thus recognized that when the United States acquires various territories, the decision to afford citizenship is to be made by Congress. Id. at 280 (opinion of Brown, J.) (“In all these cases there is an implied denial of the right of the inhabitants to American citizenship until Congress by further action shall signify its assent thereto.”); see id. at 306 (White, J., concurring); id. at 345-346 (Gray, J., concurring). Petitioners suggest (Pet. 29-30) that this reasoning is inapplicable to American Samoa because it has been a territory of the United States for many years. But the relevant point is that the Constitution grants Congress plenary power with respect to the territories and that this Court has recognized that reading the Constitution to mandate citizenship for residents of 16 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW unincorporated territories would be a significant and unwarranted limitation on that power. And an unincorporated territory does not lose that status by passage of time. See, e.g., Torres v. Puerto Rico, 442 U.S. 465, 468-470 (1979) (recognizing Puerto Rico to be an unincorporated territory 80 years after its acquisition). Petitioners also suggest (Pet. 33) that the Insular Cases “should be modified or overruled,” but this Court has reaffirmed their core principle, which is that the political Branches determine whether newly acquired territory is incorporated into the United States. See Boumediene, 553 U.S. at 756-757; Torres, 442 U.S. at 469; Reid v. Covert, 354 U.S. 1, 8-9 (1957) (plurality opinion); Balzac v. Porto Rico, 258 U.S. 298, 312 (1922). c. American Samoa is an unincorporated territory of the United States. The agreements by which American Samoa was acquired did not contemplate that it would become a State, and Congress has not enacted any law that provides a path to statehood. Persons born in American Samoa therefore are not born “in the United States” for purposes of the Citizenship Clause. The Constitution grants Congress plenary power to administer the territories, U.S. Const. Art. IV, § 3, Cl. 2, and that power, combined with Congress’s broad authority over naturalization, U.S. Const. Art. I, § 8, Cl. 4, inform the meaning of “in the United States” under the Citizenship Clause. In particular, Congress must have flexibility, when it acquires territories, to determine whether and when the inhabitants of those territories become citizens or nationals. Downes, 182 U.S. at 279-280 (opinion of Brown, J.). That flexibility has proven important when the United States has acquired territories. For example, in 1898, when the United States acquired Puerto Rico and the Philippines from Spain in the Treaty of Paris, the Treaty provided that “[t]he civil rights and political status of the native inhabitants of the[se] territories * * * shall be determined by the Congress.” Treaty of Paris, Dec. 10, 1898, U.S.-Spain, Art. IX, 30 Stat. 1759. Congress later extended U.S. citizenship to residents of Puerto Rico, see Organic Act of 1917 (Jones Act), ch. 145, § 5, 39 Stat. 953; see also Nationality Act of 1940, § 202, 54 Stat. 1139, but it provided that residents of the Philippines would be “citizens of the Philippine Islands,” rather than citizens of the United States, Autonomy Act, ch. 416, § 2, 39 Stat. 546; see Barber v. Gonzales, 347 U.S. 637, 639 n.1 (1954). As this Court has recognized, it was important for Congress to have the authority to make different arrangements for these territories, particularly because a territory (such as the Philippines) may not permanently remain under the sovereignty of the United States. See Boumediene, 553 U.S. at 757-758; see also Downes, 182 U.S. at 318 (White, J., concurring). As the court of appeals recognized, there would be “vast practical consequences” if the Citizenship Clause now were applied to unincorporated territories, including that such a development would raise questions about “the United States citizenship status of persons born in the Philippines during the territorial period,” and “potentially their children through operation of statute.” Pet. App. 9a n.6. The “years of past practice in which territorial citizenship has been treated as a statutory, and not a constitutional, right” confirm that the Citizenship Clause does not apply to American Samoa. Pet. App. 42a; see id at 14a n.7. Congress has long understood that it has the authority to decide whether and when to deem residents of U.S. territories (particularly residents of unincorporated territories) to be U.S. citizens or nationals, and Congress has exercised that authority to fashion rules for individual territories based on their particular characteristics and political futures. Downes, 182 U.S. at 251-258, 267-270 (opinion of Brown, J.). Congress’s longstanding practice provides strong evidence that the Citizenship Clause was not intended to override Congress’s plenary powers with respect to the territories—at least with respect to unincorporated territories like American Samoa. See Jackman v. Rosenbaum Co., 260 U.S. 22, 31 (1922) (Holmes, J.) (“If a thing has been practiced for two hundred years by common 19 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW appropriate case in which to address that issue, because petitioner was not born in a U.S. territory. 2. The court of appeals correctly concluded that a person born on a U.S. military base in Germany does not obtain citizenship at birth under the Citizenship Clause. The Clause confers citizenship at birth on persons who are “born or naturalized in the United States” and “subject to the jurisdiction thereof.” U.S. Const. Amend. XIV, § 1, Cl. 1. Even assuming that a person born on a U.S. military base in a foreign country is “subject to the jurisdiction” of the United States within the meaning of the Citizenship Clause, such a person does not meet the first condition for U.S. citizenship at birth under that Clause, namely, that he be “born * * * in the United States.” a. Under the plain text of the Citizenship Clause, a U.S. military base in a foreign country—Germany—is not “in the United States.” The phrase “the United States” generally refers to the 50 States and the District of Columbia. See, e.g., Black’s Law Dictionary 1769 (10th ed. 2014) (defining “United States of America” as a republic comprised of the 50 States and the District of Columbia). That meaning reflects the constitutional design: at the time the Constitution was adopted, “the United States” consisted of the 13 States, and the Constitution contemplated creation of a district carved out of those States to “become the Seat of the Government of the United States.” U.S. Const. Art. I, § 8, Cl. 17. The Constitution distinguishes between “the United States” and its territories and “foreign Nations,” “[f]oreign State[s],” or “foreign Power[s].” See, e.g., U.S. Const. Art. I, § 8, Cl. 3; U.S. Const. Art. I, § 9, Cl. 8; U.S. Const. Art. I, § 10, Cl. 3; U.S. Const. Art. III, § 2, Cl. 1; U.S. Const. Amend. XI. And the Constitution recognizes the sovereignty of foreign nations when it empowers the President (with the advice and consent of the Senate) to make treaties with them and to receive their ambassadors. U.S. Const. Art. II, § 2, Cl. 2. Nothing in the Constitution suggests that when the Framers of the Fourteenth Amendment referred to “the United States,” they meant to include an area within “foreign Nations” where a U.S. military installation is located. * * * * Indeed, Congress has long exercised its authority to specify when persons born outside of the United States acquire U.S. citizenship. … That longstanding congressional practice confirms that the Constitution does not automatically confer U.S. citizenship on a person born on a U.S. military base in a foreign country. See also 7 Foreign Affairs Manual § 1113(c) (noting that “U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the 14th Amendment,” and “[a] child born on the premises of such a facility is not born in the United States and does not acquire U.S. citizenship by reason of birth”). b. A U.S. military installation abroad is not “in the United States” under the Citizenship Clause because it is not part of the sovereign territory of the United States. The courts of appeals have uniformly held that unincorporated U.S. territories are not “in the United States” for purposes of the Citizenship Clause, and that is consistent with this Court’s teachings and with longstanding congressional practice of conferring citizenship or nationality at birth in those territories by statute. But even if the Citizenship Clause were read to include an incorporated territory of the United States, the Clause still would not encompass a U.S. military base in Germany. That is because the Citizenship Clause would at least require that an individual be 20 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW born in U.S. sovereign territory, and as the court of appeals correctly recognized, the United States does not exercise sovereignty over a U.S. military base in Germany. When the United States and a foreign nation agree that the United States may place a military installation within the foreign nation’s territory, that does not make the United States “sovereign” over that territory. Rather, the host nation retains sovereignty, and the extent to which the United States exercises jurisdiction on the land depends on terms of the agreement with the host nation. This Court has long recognized that a U.S. military base in a foreign country is “beyond the limits of national sovereignty.” Vermilya-Brown Co. v. Connell, 335 U.S. 377, 390 (1948) (applying federal labor law to a U.S. military base in Bermuda even though the base was in “foreign territory”); see Johnson v. Eisentrager, 339 U.S. 763, 777-778 (1950) (prisoners of U.S. military forces held at Landsberg Prison in Germany “at no relevant time were within any territory over which the United States is sovereign”); United States v. Spelar, 338 U.S. 217, 221-222 (1949) (recognizing that placement of U.S. military base in Newfoundland “effected no transfer of sovereignty” and that base was in a “foreign country” for purposes of Federal Tort Claims Act, 28 U.S.C. 2671 et seq.). Like the court below (Pet. App. 11-12), the courts of appeals have recognized that U.S. military bases in foreign countries are not part of the sovereign territory of the United States. And as this Court has recognized, the “determination of sovereignty over an area is for the legislative and executive departments.” Vermilya-Brown, 335 U.S. at 380; see Boumediene v. Bush, 553 U.S. 723, 753 (2008) (“[Q]uestions of sovereignty are for the political branches to decide.”). Petitioner relies (Pet. 26) on Boumediene, but that decision does not establish that a U.S. military installation in Germany is “in the United States” under the Citizenship Clause. In Boumediene, the Court held that aliens detained at the U.S. Naval Station at Guantanamo Bay, Cuba, could challenge their detention through habeas corpus, in part because of the particular degree of control the United States exercised over that base. 553 U.S. at 739-771. But the Court recognized that “Guantanamo Bay is not formally part of the United States,” and that under the lease between the United States and Cuba, “Cuba retains ultimate sovereignty over the territory while the United States exercises complete jurisdiction and control.” Id. at 753 (internal quotation marks omitted); see id. at 755 (“Cuba, and not the United States, retains de jure sovereignty over Guantanamo Bay.”). Further, the text of the Citizenship Clause itself demonstrates that United States jurisdiction or control in a foreign country is not sufficient to confer citizenship, because the Clause requires both that a person be “born * * * in the United States” and be “subject to [its] jurisdiction.” U.S. Const. Amend. XIV, § 1, Cl. 1. While the Citizenship Clause of the Fourteenth Amendment is thus confined to individuals born “in the United States, and subject to the jurisdiction thereof,” ibid. (emphasis added), the Thirteenth Amendment prohibits slavery “within the United States, or any place subject to their jurisdiction,” U.S. Const. Amend. XIII, § 1 (emphasis added). The Thirteenth Amendment’s broader language demonstrates that “there may be places subject to the jurisdiction of the United States but which are not incorporated into it, and hence are not within the United States in the completest sense of those words.” Downes v. Bidwell, 182 U.S. 244, 336-337 (1901) (White, J., concurring); see id. at 251 (opinion of Brown, J.); see also Pet. App. 9. The court of appeals therefore correctly concluded that a U.S. Army base in Germany is not “in the United States” for purposes of the Citizenship Clause. Pet. App. 9-12. Germany, not the United States, possesses sovereignty over that area. The United States is able to operate the installation because of an agreement with Germany. At the end of the agreement, the area of the 21 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW base would revert to Germany’s sole control. And even while the agreement remains in effect, Germany retains jurisdiction over the base to enforce certain of its own laws in accordance with the terms of the agreement. * * * * B. IMMIGRATION AND VISAS 1. Consular Nonreviewability a. Sidhu v. Kerry On January 26, 2016, the U.S. District Court for the Western District of Washington issued its decision in Sidhu v. Kerry, No. 15-1470 (W.D.Wash. 2016). Plaintiff challenged the finding that his sister, along with her husband and son as derivative beneficiaries, were ineligible for immigrant visas pursuant to 8 U.S.C. § 1182(a)(3)(B), which relates to terrorist activities. Section 1182(a)(3)(B) was also the basis for the visa eligibility determination at issue in the Supreme Court’s 2015 decision in Kerry v. Din, discussed in Digest 2015 at 15-20. The district court’s opinion dismissing Sidhu’s claims and referencing Din is excerpted below with footnotes omitted. ___________________ * * * * 1. Plaintiff Lacks Standing Standing is a threshold element of subject matter jurisdiction without which plaintiff cannot maintain a suit in federal court. See White v. Lee, 227 F.3d 1214, 1242. To satisfy this requirement, plaintiff must show that “he has suffered, or will imminently suffer, a concrete and particularized injury to a judicially cognizable interest.” Davis v. Guam, 785 F.3d 1311, 1314 (9th Cir. 2015) (internal quotations omitted) (quoting Bennett v. Spear, 520 U.S. 154, 167 (1997)). The injury must be “fairly traceable” to defendants’ conduct, such that it is likely that the injury would be redressed by a favorable decision. Id. The Court concludes that plaintiff has not suffered an injury to a judicially cognizable interest. Ms. Samra is an unadmitted and nonresident alien, and thus has no right to sue to further press her claim for admission. See Kleindienst v. Mandel, 408 U.S. 753, 762 (1972). Plaintiff seeks to evade this clear jurisdictional issue by reframing his challenge as based on a violation of his own constitutional rights. Construing the Complaint in the light most favorable to plaintiff, the Court understands the alleged harm to be the separation of plaintiff and his sister. However, there is no liberty interest in the companionship of one’s sibling. See Ward v. City of San Jose, 967 F.2d 280, 283-84 (9th Cir. 1991); see also Adeyemo v. Kerry, 2013 WL 498169, *3 (D. Md. Feb. 7, 2013) (dismissing due process claim brought by sister of alien whose visa application was denied). Plaintiff has not alleged any other possible harm. Lacking a cognizable injury, plaintiff cannot establish standing and therefore the case must be dismissed. 24 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW ___________________ * * * * Because no single rationale commanded a majority of the Court in Din, Cardenas urges us to re- adopt the standard in our opinion in that case. However, our Din approach was squarely rejected by a majority of the Supreme Court, Din, 135 S. Ct. at 2131, and therefore we are not free to return to it. The government argues that Justice Kennedy’s concurrence controls. We agree. In Marks v. United States, the Supreme Court held that “[w]hen a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” 430 U.S. 188, 193 (1977) (internal quotation marks and citation omitted). As we recently explained, “the narrowest opinion must represent a common denominator of the Court’s reasoning; it must embody a position implicitly approved by at least five Justices who support the judgment.” United States v. Davis, No. 13-30133, slip op. at 14 (9th Cir. June 13, 2016) (en banc) (quoting King v. Palmer, 950 F.2d 771, 781 (D.C. Cir. 1991)); accord Lair v. Bullock, 697 F.3d 1200, 1205 (9th Cir. 2012) (the narrowest opinion must be the “logical subset of other, broader opinions” (quoting United States v. Rodriguez-Preciado, 399 F.3d 1118, 1140 (9th Cir. 2005)). “Stated differently, Marks applies when, for example, ‘the concurrence posits a narrow test to which the plurality must necessarily agree as a logical consequence of its own, broader position.” United States v. Epps, 707 F.3d 337, 348 (D.C. Cir. 2013) (quoting King, 950 F.2d at 782). Justice Kennedy’s concurrence fits this description. The Din plurality’s broad position was that (1) “an unadmitted and nonresident alien . . . has no right of entry into the United States, and no cause of action to press in furtherance of his claim for admission,” and (2) the Due Process Clause does not enable an alien’s citizen spouse to bring suit on his behalf. 135 S. Ct. at 2131. The Kennedy concurrence’s narrower position is that, even assuming a citizen spouse can bring such a challenge, the challenge fails as long as the consular officer has cited a valid statute of inadmissibility which implies a bona fide factual basis behind the denial. Id. at 2140–41. The plurality would necessarily agree that, when the consular officer cites such a statute, the denial stands, at least in a case only raising the due process rights of a citizen spouse. The Kennedy concurrence therefore represents the holding of the Court. Under the Din concurrence, the facially legitimate and bona fide reason test has two components. First, the consular officer must deny the visa under a valid statute of inadmissibility. Id. (consular officer’s citation to § 1182(a)(3)(B) “suffices to show that the denial rested on a determination that Din’s husband did not satisfy the statute’s requirements,” and “the Government’s decision to exclude an alien it determines does not satisfy one or more of [the statutory conditions for entry] is facially legitimate under Mandel”). Second, the consular officer must cite an admissibility statute that “specifies discrete factual predicates the consular officer must find to exist before denying a visa,” or there must be a fact in the record that “provides at least a facial connection to” the statutory ground of inadmissibility. Id. at 2141. Once the government has made that showing, the plaintiff has the burden of proving that the reason was not bona fide by making an “affirmative showing of bad faith on the part of the consular officer who denied [ ] a visa.” Id. 25 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW C. Application of the Din Test As Cardenas implicitly recognizes by advocating for a broader standard of review, adoption of Justice Kennedy’s Din concurrence as the controlling opinion of the Court dooms her claims in this case. The consular officer gave a facially legitimate reason to deny Mora’s visa because he cited a valid statute of inadmissibility, § 1182(a)(3)(A)(ii), which denies entry to an alien who intends to enter with the intent to engage in “unlawful activity.” He also provided a bona fide factual reason that provided a “facial connection” to the statutory ground of inadmissibility: the belief that Mora was a “gang associate” with ties to the Sureno gang. Cardenas argues that she properly alleged bad faith because, when Mora appeared for the second interview, the consular officer refused to accept or review the proffered expert opinion that Mora had never been a gang member or the letter showing his acceptance into a tattoo removal program. But, the allegations about the second interview obviously cannot raise a plausible inference that the officer acted in bad faith in making the original decision. And, although counsel’s purpose in arranging the second interview was to allow Mora to submit additional evidence, that the consular officer did not accept Mora’s new documents does not show bad faith. During his second interview, Mora was extensively questioned by two officials and was given the opportunity to argue that he had no ties to the Sureno gang. * * * * d. Santos v. Lynch In Santos v. Lynch, No. 15-979 (E.D. Cal. 2016), the court considered whether there is a liberty interest in residing with one’s adult child equivalent to the liberty interest in residing with one’s spouse that was at issue in Din. On June 29, 2016, the court issued its opinion, concluding that there was no equivalent right and proceeded to find that, applying the standard in Din, the visa application had been denied based on a facially legitimate and bona fide reason. Excerpts follow from the opinion, with footnotes and record citations omitted. ___________________ * * * * Plaintiff argues that “[t]here is no support for Defendant‟s proposition that the due process rights under the constitution[ ] are implicated only where the U.S. citizen’s right to reside with his or her spouse are implicated.” Defendants argue that a marriage relationship is not the equivalent of an adult child-parent relationship. Defendants cite Al-Aulaqi v. Obama, 727 F.Supp.2d 1, 26 (D.D.C. 2010), in which the District Court of the District of Columbia found that “all circuits to address the issue have expressly declined to find a violation of the familial liberty interest where state action has only an incidental effect on the parent’s relationship with his adult child, and was not aimed specifically at interfering with the relationship.” Plaintiffs have not provided any authority, and the Court is not aware of any authority, that an adult child has a constitutional interest in living in the United States with his or her noncitizen parents. The Court finds that the Ninth Circuit’s use of the phrase “in matters of marriage and family life” when finding procedural due process protection for marriages in the context of the denial of a visa or admission and exclusion of aliens has not extended, and does not extend to adult children living 26 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW with their alien parents in the United States. The Court notes that the Federal Government is not attempting to forbid parents and adult children from living together. Plaintiff remains free to live with her parents anywhere in the world where they are permitted to reside. At the hearing on June 22, 2016, and in her June 27, 2016 supplemental brief, Plaintiff argued that because the Citizen and Immigration Service (CIS) allows a quicker turn-around of visa applications for spouses and parents of United States citizens than for other relatives, an adult child’s right to live with her alien parents in the United States should be the equivalent of spouses. In order for an alien to obtain an immigrant visa to enter and permanently reside in the United States, “the alien must fall within one of a limited number of immigration categories.” Scialabba v. Cuellar de Osorio, 134 S.Ct. 2191, 2197 (2014) (citing 8 U.S.C. §§ 1151(a)-(b)). The parents, spouses, and unmarried children under the age of 21 of United States citizens fall within the “immediate relatives” category. See Scialabba, 134 S.Ct. at 2197 (citing 8 U.S.C. §§ 1151(b)(2)(A)(i), 1101(b)(1)). The five less-favored categories are called “preference” categories for “family-sponsored immigrants” and are “distant or independent relatives of [United States] citizens, and certain close relatives of [legal permanent residents]. Scialabba, 134 S.Ct. at 2197 (citing 8 U.S.C. §§ 1151(a)(1), 1153(a)(1)-(4)). However, the fact that the Executive Branch includes parents and spouses of United States‟ citizens in the “immediate relatives” category for purposes of visa applications does not mean that an adult child has a liberty interest in their parents living in the United States. Therefore, the Court finds that Plaintiff does not have a liberty interest as an adult child to live in the United States with her parents. As the denials of Mr. and Mrs. Santos’s visa applications do not implicate Plaintiff’s liberty interest in family life, there is no process due to her under the United States Constitution. The Court does not need to conduct any further review of the reasons for the consular official’s denials of Mr. and Mrs. Santos’s visa applications. Even if the Court was to find that Plaintiff stated a liberty interest in living in the United States as an adult child with her parents, Plaintiff has failed to allege that the reasons offered by the consular official for denying her parents’ visa applications were not “facially legitimate and bona fide.” Bustamante, 531 F.3d at 1062; Din, 135 S. Ct. at 2140 (Kennedy, J., concurring). The Ninth Circuit in Cardenas found that based on the Din concurrence there are two components to the “facially legitimate and bona fide” test: First, the consular officer must deny the visa under a valid statute of inadmissibility. [Din, 135 S.Ct. at 2140-41] (consular officer's citation to § 1182(a)(3)(B) “suffices to show that the denial rested on a determination that Din's husband did not satisfy the statute's requirements,” and “the Government’s decision to exclude an alien it determines does not satisfy one or more of [the statutory conditions for entry] is facially legitimate under Mandel”). Second, the consular officer must cite an admissibility statute that “specifies discrete factual predicates the consular officer must find to exist before denying a visa,” or there must be a fact in the record that “provides at least a facial connection to” the statutory ground of inadmissibility. Id. at 2141. Once the government has made that showing, the plaintiff has the burden of proving that the reason was not bona fide by making an “affirmative showing of bad faith on the part of the consular officer who denied [ ] a visa.” Id. See Cardenas, 2016 WL 3408047, at *6. Here, the consular officer who denied Mr. and Mrs. Santos’s visa applications determined that they were ineligible for visas under § 212(a)(9)(B)(i)(II) of the Immigration and Nationality Act because they lived unlawfully in the United States for a period exceeding 1 year. The 29 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW fully discussed and rejected below in section III.B.3. In summary, the APA, 5 U.S.C. § 555(b), creates a duty for the Government to reach a final decision on Plaintiffs’ applications “within a reasonable period,” and RCIA § 1242(c) (1) and AAPA § 602(4) (A) clarify that that duty is non- discretionary and must “ordinarily” be completed within nine months. See infra section III.B.3. The Government also argues that the Court may not redress Plaintiffs’ injuries because courts are not free to fashion their own “coercive sanctions” to bring about compliance with statutory deadlines. … … Plaintiffs do not seek to construct any sanction for the Government’s failure to process their SIV applications, nor do they seek review of any substantive decisions by the Government. Instead, Plaintiffs ask the Court to do just what the APA and the Mandamus Act authorize: issue an order to adjudicate their applications, whatever the substantive results may be. See 5 U.S.C. § 706(1); 28 U.S.C. § 1361. Such an order would directly redress Plaintiffs’ injury caused by the Government’s failure to decide. In short, Plaintiffs have been injured by the failure to obtain final decisions on their SIV applications, that injury is caused by the Government’s failure to act, and the injury would be redressed by an order from this Court. Accordingly, Plaintiffs have made the injury, causation, and redressability showings required to establish standing to pursue their claims. Lujan, 504 U.S. at 560-61. 2. The Doctrine of Consular Nonreviewability As already discussed, the Government’s major argument is that Plaintiffs’ applications have already been finally refused and the doctrine of consular nonreviewability precludes any further review of those decisions. This fact, the Government contends, deprives Plaintiffs of standing to bring their claims, and deprives the Court of jurisdiction to hear them. * * * * In support of their contention that their applications have not received a final decision, Plaintiffs put forth a significant body of evidence. First and foremost, the Government’s own Case Status Tracker states that Plaintiffs’ applications remained in “administrative processing” as of September 24, 2015. * * * * Despite the convincing evidence Plaintiffs cite to show that Defendants have not finally adjudicated their SIV applications, which still remain in “administrative processing,” the Government contends that the Court should treat those applications as finally denied as a matter of law. … The Court disagrees. The Government contends that because regulations and State Department guidance documents governing the visa process require consular officers to “either issue or refuse the visa” when presented with a complete application, the Court should treat Plaintiffs pending applications as refused. … However, it is clear that visa applications are not always being finally refused in any meaningful sense immediately upon presentation of a completed application. The Foreign Affairs Manual’s statement that “[t] here is no such thing as an informal refusal or a pending case once a formal application has been made[,]” 9 FAM 42.81 Nl, simply does not accord with Defendants’ practices, as the record demonstrates. 30 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW The Government also cites 8 U.S.C. § 120l(g) itself for the proposition that Plaintiffs have all received final refusals as a matter of law. … But § 1201(g) merely contains the (expansive) criteria for refusing an application; it does not establish when or whether, as a matter of law, an application has been refused. The Government next turns to case law, arguing that “Plaintiffs fail to meet their burden to demonstrate standing because there is a long line of cases explaining that non-resident aliens lack standing to challenge the determinations associated with their visa applications, which belong to the political and not judicial branches of government.” * * * * The Government also makes much of a passage in Justice Kennedy’s concurrence in Kerry v. Din, 135 S.Ct. 2128, 2141 (2015), in which he states that the Government satisfies any due process duty owed to visa applicants and their citizen relatives when it cites the statutory basis for a visa application’s denial. But again, the Government’s reliance is misplaced. Plaintiffs do not contend that they were entitled to a more fulsome explanation of the Government’s decision on each of their SIV applications they merely claim that they are entitled to a decision. * * * * In short, the doctrine [of consular nonreviewability] holds only that “there may be no judicial review of [] decisions to exclude aliens unless Congress has expressly authorized this[,]” Saavedra Bruno, 197 F.3d at 1162 (emphasis added and internal quotation marks omitted), but does not preclude Plaintiffs from challenging the Government’s failure to decide, Patel, 134 F.3d at 932. Accordingly, because the applications of Ronaldo, Foxtrot, India, Juliet, Alice, Hotel, and Lima remain in “administrative processing” and, therefore, have not been finally refused, the doctrine of consular nonreviewability does not bar their claims. See Maramjaya, 2008 WL 9398947, at *4; Patel, 134 F.3d at 931-32. * * * * 3. Judicially Manageable Standards to Enforce a Non-discretionary Duty The Government next contends that Counts 3-6 must be dismissed for lack of jurisdiction because Plaintiffs fail to identify a non-discretionary duty owed them as well as judicially manageable standards by which the Court may measure compliance with that duty. The APA provides that “within a reasonable time, each agency shall proceed to conclude a matter presented to it.” 5 U.S.C. § 555(b). Thus, “[t]he APA imposes a general but nondiscretionary duty upon an administrative agency to pass upon a matter presented to it ‘within a reasonable time,’ 5 U.S.C. § 555(b), and authorizes a reviewing court to ‘compel agency action unlawfully withheld or unreasonably delayed,’ id. § 706 (1) .” Fort Sill Apache Tribe v. Nat’l Indian Gaming Comm’n, No. CV 14-958, 2015 WL 2203497, at *4 (D.D.C. May 12, 2015) (citing Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d 1094, 1099- 1100 (D.C. Cir. 2003)). The RCIA and AAPA provide additional guidance, instructing that Defendants shall process SIV applications within nine months. RCIA § 1242 (c) (1); AAPA §§ 602 (4) (A). The text of the statutes makes clear that the nine-month timeline applies to “all steps” under Defendants’ control “incidental to the issuance of such [SIV] visas[.]” Id. Thus, the timeline 31 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW applies to each of the 14 steps in the SIV adjudication process identified in the Joint Reports that are within Defendants’ control, including “administrative processing” and “[Chief of Mission or] COM Approval.” …Simply put, the APA imposes a duty on Defendants to act within a “reasonable” time on Plaintiffs’ applications, and the RCIA and AAPA provide manageable standards (an explicit timeline) by which a Court may assess the Government’s compliance. … Finally, the Government actually acknowledges that its duty to eventually reach a decision on pending SIV applications is non-discretionary. … Nevertheless, the Government contends that the pace at which it adjudicates SIV applications is entirely discretionary, citing Beshir v. Holder, 10 F. Supp. 3d 165 (D.D.C. 2014) for support. Admittedly, Beshir takes an expansive view of the Government’s power to decide certain immigration applications on its own timeline. Beshir, 10 F. Supp. 3d at 174 (holding that “the pace of adjudication is discretionary”). However, the Beshir court based its conclusion on factors which are not present in this case. First, the Beshir court relied on “[t]he absence of a congressionally-imposed deadline or timeframe to complete the adjudication of [immigrant] adjustment [of status] applications [as] support[] [for] the conclusion that the pace of adjudication is discretionary and thus not reviewable[.]” Id. at 176. In the case at bar, Congress has provided a clear nine-month timeline for the adjudication of SIV applications. Second Beshir relied on relevant statutory language permitting the Government to consider certain applications “in the Secretary [of Homeland Security] or the Attorney General’s discretion and under such regulations as the Secretary or Attorney General may prescribe.” Id. at 173 (quoting 8 U.S.C. § 1159(b)). The Government points to no similarly explicit grants of discretion applicable to Plaintiffs’ applications. Thus, the Beshir Court’s reasoning is wholly inapplicable. The Government also contends that the pace of adjudication of SIV applications is discretionary because Congress provided for the possibility that “national security concerns” might cause some applications to require additional time. See RCIA § 1242 (c) (2) (“Nothing in this section [which includes the nine-month timeline quoted above] shall be construed to limit the ability of [the] Secretary [of State and the Secretary of Homeland Security] to take longer than 9 months to complete those steps incidental to the issuance of such visas in high-risk cases for which satisfaction of national security concerns requires additional time.”); see also AAPA § 602 (4) (B) (same). As the Government reads them, the statutes’ mention of national security returns absolute discretion to the Government’s hands. … The RCIA and AAPA follow the same structure. Both statutes introduce the nine-month timeline and define its application in one paragraph and then introduce the safety valve for “high-risk cases” in the very next paragraph. RCIA § 1242(c) and AAPA § 602 (b) (4). The statute sets forth that additional time may be permitted when national security issues arise. Obviously, Congress would not have adopted this rule-and-exception structure if it expected the exception to apply in every case. Moreover, the words “high-risk bases” indicate a distinction between the run-of-the­mill case, which must be adjudicated within nine months, and a subset of cases presenting “national security concerns” that do not arise in the typical application. RCIA § 1242(c); AAPA § 602(b) (4). The Government’s reading would allow the national security exception to swallow the nine-month rule in its entirety. 34 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW business, medical, or humanitarian travel to the United States, U.S. embassies and consulates stand ready to process applications on an expedited basis. Beginning January 21, 2016, travelers who currently have valid Electronic System for Travel Authorizations (ESTAs) and who have previously indicated holding dual nationality with one of the four countries listed above on their ESTA applications will have their current ESTAs revoked. Under the new law, the Secretary of Homeland Security may waive these restrictions if he determines that such a waiver is in the law enforcement or national security interests of the United States. Such waivers will be granted only on a case-by-case basis. As a general matter, categories of travelers who may be eligible for a waiver include: • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of international organizations, regional organizations, and sub-national governments on official duty; • Individuals who traveled to Iran, Iraq, Sudan or Syria on behalf of a humanitarian NGO on official duty; • Individuals who traveled to Iran, Iraq, Sudan or Syria as a journalist for reporting purposes; • Individuals who traveled to Iran for legitimate business-related purposes following the conclusion of the Joint Comprehensive Plan of Action (July 14, 2015); and • Individuals who have traveled to Iraq for legitimate business-related purposes. Again, whether ESTA applicants will receive a waiver will be determined on a case-by- case basis, consistent with the terms of the law. In addition, we will continue to explore whether and how the waivers can be used for dual nationals of Iraq, Syria, Iran and Sudan. Any traveler who receives notification that they are no longer eligible to travel under the VWP are still eligible to travel to the United States with a valid nonimmigrant visa issued by a U.S. embassy or consulate. Such travelers will be required to appear for an interview and obtain a visa in their passports at a U.S. embassy or consulate before traveling to the United States. The new law does not ban travel to the United States, or admission into the United States, and the great majority of VWP travelers will not be affected by the legislation. * * * * 4. Visa Restrictions and Limitations a. Caribbean On February 4, 2016 the United States government announced changes to entry requirements for certain Caribbean residents coming to the United States as H-2A agricultural workers. See February 4, 2016 State Department media note, available at http://2009-2017.state.gov/r/pa/prs/ps/2016/02/252167.htm. New rules, effective February 19, 2016, require certain Caribbean residents seeking to come to the United States as H-2A agricultural workers to have both a valid passport and visa. The change applies to a British, French, or Netherlands national, or a national of Barbados, Grenada, Jamaica, or Trinidad and Tobago, who has residence in British, French, or Netherlands territory located in the adjacent islands of the Caribbean, or has residence in Barbados, Grenada, Jamaica, or Trinidad and Tobago. 35 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW The State Department media note explains: Eliminating this visa exemption, which was originally created to address labor shortages during World War II, will ensure those traveling to the United States, like other H-2A agricultural workers, have been sufficiently screened via the Department of State’s visa issuance process prior to their arrival. This visa requirement will also better ensure that these workers are protected from potential employment and recruitment-based abuses. The spouses and children who travel with these workers to the United States will also be required to have both a valid passport and visa. b. Revised definition of “immediate family” for certain visas On December 7, 2016, the State Department issued a rule amending the definition of “immediate family” for purposes of A, C–3, G, and NATO visa classifications. 81 Fed. Reg. 88,101 (Dec. 7, 2016). The Federal Register notice provides supplementary background information on the change: This rule amends the definition of immediate family in the A, C-3, G, and relevant NATO nonimmigrant visa classifications so that unmarried adult sons and daughters who reside with the principal will not be automatically classified as immediate family for visa purposes irrespective of their age. Unmarried sons and daughters residing with the principal who are under the age of 21, or under the age of 23 and in full-time attendance as students at post-secondary educational institutions, will continue to be considered immediate family. However, any other unmarried son or daughter residing with the principal will only qualify if he or she meets the same criteria the rule imposes on other family members. In particular, he or she must be recognized as an “immediate family member” by the sending government or international organization for purposes of eligibility for rights and benefits and be individually authorized by the Department. An adult son or daughter who is no longer recognized as an immediate family member may be eligible to apply for another visa classification or seek a change of status to another nonimmigrant status. This rule also clarifies that for purposes of G-4 visa classification, the employing international organization recognizes immediate family members. . . . Prior to this amendment, an unmarried adult son or daughter who is not part of any other household and resides regularly in the household of the principal alien must be classified in A or G visa classifications, even if otherwise eligible for another nonimmigrant classification and regardless of age or the intention of the sending government or international organization. Yet for purposes of privileges and immunities, the Department of State accepts only unmarried children under the age of 21, or unmarried sons and daughters under the age of 23 and in full-time attendance as students at post-secondary educational institutions, as dependents. Similarly, under 8 CFR 214.2(a)(2) and 36 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW (g)(2) for employment authorization purposes, Department of Homeland Security (DHS) regulations generally only consider unmarried children under the age of 21, or unmarried sons and daughters under the age of 23 and in full-time attendance as students at post- secondary educational institutions, to be dependents. (Under certain circumstances, DHS, under its regulations, may also recognize as dependents sons and daughters up to the age of 25 or of any age if physically or mentally challenged.) In practice, requiring A or G classification for sons and daughters above these age limits precludes them from obtaining a nonimmigrant classification that would enable them to accept employment in the United States. As described in a circular note to foreign missions explaining the change: The requirements for unmarried adult sons and daughters age 21 or older were revised under the regulations at 22 CFR 41.21(a)(3). … Sons and daughters who do not meet these requirements may still qualify as immediate family under the third category for other individuals, but must be recognized as dependents of the principal alien by the sending government or international organization, as demonstrated by eligibility for rights and benefits, such as the issuance of a diplomatic or official passport, or travel or other allowance. An adult son or daughter who is no longer recognized as an immediate family member may be eligible to apply for another visa classification or seek a change of status to another nonimmigrant status. 5. Removals and Repatriations The Department of State works closely with the Department of Homeland Security in effecting the removal of aliens subject to final orders of removal. It is the belief of the United States that every country has an obligation to accept the return of its nationals who cannot remain in the United States or any other country. In July 2016, Michelle T. Bond, Assistant Secretary for the Bureau of Consular Affairs, testified on the issue of removals before the House of Representatives Committee on Oversight and Government Reform. Her written statement is available at https://oversight.house.gov/wp-content/uploads/2016/07/Bond-DOS-Statement- Recalcitrant-Countries-7-14.pdf. C. ASYLUM, REFUGEE, AND MIGRANT PROTECTION ISSUES 1. Temporary Protected Status Section 244 of the Immigration and Nationality Act (“INA” or “Act”), as amended, 8 U.S.C. § 1254a, authorizes the Secretary of Homeland Security, after consultation with 39 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW f. Honduras On May 16, 2016, DHS announced the extension of the designation of Honduras for TPS for 18 months from July 6, 2016 through January 5, 2018. 81 Fed. Reg. 30,331 (May 16, 2016). The extension was based on the determination that conditions in Honduras supporting the TPS designation continue to be met, namely, there continues to be a substantial, but temporary, disruption of living conditions in Honduras resulting from Hurricane Mitch, which struck Honduras in 1998, and subsequent environmental disasters, and Honduras remains unable, temporarily, to handle adequately the return of its nationals. Id. g. Nicaragua Also on May 16, 2016, DHS announced the extension of the designation of Nicaragua for TPS for 18 months from July 6, 2016 through January 5, 2018. 81 Fed. Reg. 30,325 (May 16, 2016). The extension was based on the determination that conditions in Nicaragua supporting the TPS designation continue to be met, namely, there continues to be a substantial, but temporary, disruption of living conditions in Nicaragua resulting from Hurricane Mitch, which struck Nicaragua in 1998, and subsequent environmental disasters, and Honduras remains unable, temporarily, to handle adequately the return of its nationals. Id. h. El Salvador On July 8, 2016, DHS announced the extension of the designation of El Salvador for TPS for 18 months from September 10, 2016 through March 9, 2018. 81 Fed. Reg. 44,645 (July 8, 2016). The extension was based on the determination that conditions in El Salvador supporting the TPS designation continue to be met, namely, there continues to be a substantial, but temporary, disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador remains unable, temporarily, to handle adequately the return of its nationals. Id. i. Syria On August 1, 2016, DHS announced that it was extending the designation of the Syrian Arab Republic (Syria) for TPS for 18 months, from October 1, 2016 through March 31, 2018, and redesignating Syria for TPS for 18 months, effective October 1, 2016 through March 31, 2018. 81 Fed. Reg. 50,533 (Aug. 1, 2016). The extension and redesignation are based on the determination that that the ongoing armed conflict and other extraordinary and temporary conditions that prompted the 2015 TPS redesignation have not only persisted, but have deteriorated, and the ongoing armed conflict in Syria 40 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW and other extraordinary and temporary conditions would pose a serious threat to the personal safety of Syrian nationals if they were required to return to their country. Id. j. Nepal On October 26, 2016, DHS announced the extension of the designation of Nepal for TPS for 18 months, through June 24, 2018. 81 Fed. Reg. 74,470 (Oct. 26, 2016). Nepal was designated in 2015 on environmental disaster grounds due to a severe earthquake on April 25, 2015. As explained in the notice of the extension in the Federal Register, recovery and reconstruction from the 2015 earthquake were delayed due to civil unrest and obstruction of Nepal’s border with India. As a result, Nepal continues to have a large number of its population without permanent or safe housing and strains on its infrastructure impacting housing, food, medicine, and education. DHS accordingly determined that Nepal continues to be unable to handle adequately the return of aliens who are nationals of Nepal and the conditions supporting its designation for TPS in 2015 continue to be met. Id. 2. Refugee Admissions in the United States On January 13, 2016, President Obama issued a memorandum for the Secretary of State conveying Presidential Determination No. 2016-05 regarding unexpected urgent refugee and migration needs. 81 Fed. Reg. 68,925 (Oct. 4, 2016). The memorandum states: By the authority vested in me as President by the Constitution and the laws of the United States, including section 2(c)(1) of the Migration and Refugee Assistance Act of 1962 (the ‘‘Act’’) (22 U.S.C. 2601(c)(1)), I hereby determine, pursuant to section 2(c)(1) of the Act, that it is important to the national interest to furnish assistance under the Act, in an amount not to exceed $70 million from the United States Emergency Refugee and Migration Assistance Fund, for the purpose of meeting unexpected urgent refugee and migration needs related to the U.S. Refugee Admissions Program, through contributions and other assistance to international and nongovernmental organizations funded through the Bureau of Population, Refugees, and Migration of the Department of State. Funds will be used by the Department of State to meet the unexpected urgent need for additional resources within the U.S. Refugee Admissions Program, in light of the unprecedented number of refugees in need of resettlement. On September 28, 2016, President Obama issued a memorandum for the Secretary of State, conveying Presidential Determination No. 2016-13 regarding refugee admissions for fiscal year 2017. 81 Fed. Reg. 70,315 (Oct. 11, 2016). The Presidential Determination is excerpted below. 41 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW ___________________ * * * * In accordance with section 207 of the Immigration and Nationality Act (the “Act”) (8 U.S.C. 1157), and after appropriate consultations with the Congress, I hereby make the following determinations and authorize the following actions: The admission of up to 110,000 refugees to the United States during Fiscal Year (FY) 2017 is justified by humanitarian concerns or is otherwise in the national interest; provided that this number shall be understood as including persons admitted to the United States during FY 2017 with Federal refugee resettlement assistance under the Amerasian immigrant admissions program, as provided below. The admissions numbers shall be allocated among refugees of special humanitarian concern to the United States in accordance with the following regional allocations; provided that the number of admissions allocated to the East Asia region shall include persons admitted to the United States during FY 2017 with Federal refugee resettlement assistance under section 584 of the Foreign Operations, Export Financing, and Related Programs Appropriations Act of 1988, as contained in section 101(e) of Public Law 100– 202 (Amerasian immigrants and their family members): Africa ................................................................................................................................. 35,000 East Asia ............................................................................................................................ 12,000 Europe and Central Asia ..................................................................................................... 4,000 Latin America and the Caribbean .................................................................................... ... 5,000 Near East and South Asia ...................................................................................................40,000 Unallocated Reserve .......................................................................................................... 14,000 * * * * Additionally, upon notification to the Judiciary Committees of the Congress, you are further authorized to transfer unused admissions allocated to a particular region to one or more other regions, if there is a need for greater admissions for the region or regions to which the admissions are being transferred. Consistent with section 2(b)(2) of the Migration and Refugee Assistance Act of 1962, I hereby determine that assistance to or on behalf of persons applying for admission to the United States as part of the overseas refugee admissions program will contribute to the foreign policy interests of the United States and designate such persons for this purpose. Consistent with section 101(a)(42) of the Act (8 U.S.C. 1101(a)(42)), and after appropriate consultation with the Congress, I also specify that, for FY 2017, the following persons may, if otherwise qualified, be considered refugees for the purpose of admission to the United States within their countries of nationality or habitual residence: a. Persons in Cuba b. Persons in Eurasia and the Baltics c. Persons in Iraq d. Persons in Honduras, Guatemala, and El Salvador 44 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW We are also pleased that the declaration includes specific language reaffirming the principle of non-refoulement. We underscore the importance of the core principle of non- refoulement to the protection of refugees and asylum-seekers and regret that Appendix I (Comprehensive refugee response framework) does not refer to it. Protection must remain central in all refugee responses, which includes ensuring the voluntary nature of any refugee return. While the declaration and its Appendix I rightly emphasize the importance of finding durable solutions for refugees, including voluntary return and resettlement, we are disappointed that local integration is not mentioned. Local integration continues to be important, and it is statistically the most likely of the three durable solutions for refugees. The declaration correctly emphasizes the particular vulnerabilities and needs of refugee and migrant children. Efforts to protect and promote the well-being of children in our country and abroad are a longstanding priority for the United States. We underscore our unwavering commitment to children around the world, evidenced in part by our annual contributions as UNICEF’s largest donor—totaling more than $868 million last year and our recent pledge of $20 million to support “Education Cannot Wait”—a fund to strengthen education in emergencies and protracted crises. In addition, U.S. initiatives such as “Let Girls Learn” support girls around the world so they can transition to and succeed in secondary school. In advance of the Leaders’ Summit for Refugees on September 20, the United States is also providing nearly $37 million to the UN High Commissioner for Refugees to allow tens of thousands of refugee children to enroll in school and to support education-related Summit commitments by refugee-hosting countries. The U.S. government draws from a wide range of available resources to safely process migrant children, in accordance with applicable laws. In the limited circumstances in which migrant children are placed in custody of the U.S. government, the United States is committed to ensuring that they are treated in a safe, dignified, and secure manner. The United States believes that current practices with respect to children are consistent with this commitment. Further, the United States does provide appropriate procedural safeguards for all migrants and asylum seekers, whether or not they are in U.S. government custody, and we interpret the declaration’s references to due process and other protections, including for persons seeking to cross an international border and in the context of returns, to be consistent with our existing national laws and policies in this regard. Additionally, while delegates showed flexibility in reaching an outcome of which we can all be proud, we regret that some important topics were omitted. More than 40 million internally displaced persons (IDPs) globally form one of the world’s most vulnerable populations, and the declaration should have included stronger and more specific language on their protection and assistance needs. Nonetheless, many of the solutions the declaration outlines for refugees are equally relevant for IDPs; the causes of displacement are often the same while the vulnerabilities they face are often life-threatening. We encourage States to draw on the commitments in this text in their efforts to protect and assist IDPs, to adopt laws and policies to do so, and to promote the inclusion of IDPs in their development strategies. The UN system needs to remain focused on this critical issue, mindful of the Human Rights Council’s recognition, in its recently adopted resolution on IDPs, of the need for further consideration of reestablishing the position of Special Representative of the Secretary-General on IDPs. Lastly, we are pleased that the declaration includes language on the problem of statelessness. Together with a cross-regional group of 107 co-sponsors, the United States was proud to introduce a resolution on women’s equal nationality rights at the Human Rights Council’s June session. That resolution highlights the discrimination against women in their 45 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW ability to confer nationality to their spouses and children, a problem that persists in every region of the world, and increases the risk of statelessness. Statelessness, in turn, increases vulnerability of people to human rights abuses and violations, including those involving human trafficking, arbitrary detention, and restrictions on movement. We underscore the importance of resolving existing situations of statelessness to address protracted refugee crises, to avoid discrimination against women as well as racial or ethnic discrimination in nationality laws, and to ensure robust civil registration—particularly birth registration—for all. As we look ahead, we intend to build upon the elements of this declaration to improve the lives of millions of refugees and vulnerable migrants. The United States looks forward to cooperating with other Member States and the United Nations to advance these objectives, including through the development and adoption of the compacts on refugees and on safe migration that the declaration envisions. * * * * 46 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW Cross References Evacuation of U.S. citizens in Yemen, Chapter 5.C.1. Lin v. United States (nationality of residents of Taiwan), Chapter 5.C.3 Asylym and non-refoulement at IACHR, Chapter 7.D.1.f. Diplomatic relations, Chapter 9.A. World Bank Global Crisis Response Platform (response to refugee crisis), Chapter 11.J.4.a. 49 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW federal complaint challenging the suspension. Skalka et al. v. Johnson et al., No. 16-107 (D.D.C.). The suspension halted the adjudication of immediate relative visa petitions (“I- 600 petitions”) filed on behalf of children from Nepal. Excerpts follow (with footnotes omitted) from the U.S. brief in support of the motion to dismiss, which is available in full, with the reply brief, at https://www.state.gov/s/l/c8183.htm. ___________________ * * * * The Court should dismiss this case under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for the following reasons explained further below. First, most of the Plaintiffs lack standing and thus their claims should be dismissed. Second, Plaintiffs’ claim that the Suspension is itself unlawful fails as a matter of law because it is within Defendants’ statutory grant of authority and is neither prohibited by nor conflicts with any other provision of law. Third, Plaintiffs’ challenge to prudence and propriety of Defendants’ decision to impose the Suspension poses a nonjusticiable political question. Finally, Plaintiffs’ mandamus claim should be dismissed both because they cannot show that Defendants owe them a clear, nondiscretionary duty, and as a matter of the Court’s discretion. I. Plaintiffs should be dismissed for lack of Article III standing. * * * * C. Frank Adoption Center lacks organizational standing because it has failed to establish an injury-in-fact that is fairly traceable to Defendants. Like the individual Plaintiffs, the claims of organizational Plaintiff Frank Adoption Center should also be dismissed for lack of standing. As an organization, Frank Adoption Center “can assert standing on its own behalf, on behalf of its members or both.” Equal Rights Ctr. v. Post Properties, Inc., 633 F.3d 1136, 1138 (D.C. Cir. 2011). Based on the allegations in the [complaint or] FAC, Frank Adoption Center only asserts standing on its own behalf. … When asserting standing on its own behalf, an organization must meet the standing requirements applied to individuals. Spann v. Colonial Vill., Inc., 899 F.2d 24, 27 (D.C. Cir. 1990). Thus, to establish standing, an organization “must demonstrate that it has suffered injury in fact, including such concrete and demonstrable injury to the organization’s activities—with a consequent drain on the organization’s resources—constituting more than simply a setback to the organization’s abstract social interests.” Nat’l Ass’n of Home Builders v. E.P.A., 667 F.3d 6, 11 (D.C. Cir. 2011) (internal quotes and alterations omitted). Where the objectives of an organization are merely “frustrated,” the concerns are too abstract and standing is not imparted. Nat’l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995). In the FAC, Frank Adoption Center asserts that it is “a non-profit organization dedicated exclusively to facilitating . . . American families through the Nepalese adoption process.” …The organization asserts that it “has been, and will continue to be, unable to fulfill this mission since the Blanket Suspension halted all adoptions by U.S. citizens of abandoned Nepalese children in August 2011” and will remain unable to do so “unless and until the Blanket Suspension is lifted.” … 50 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW Frank Adoption Center’s allegations fail to establish that it has suffered an injury-in-fact for two reasons. First, Frank Adoption Center does not provide any specific allegations detailing how it has been harmed by the Suspension. … This is precisely “the type of abstract concern that does not impart standing.” Nat’l Taxpayers Union, 68 F.3d at 1433 (“allegation that [statute] has ‘frustrated’ NTU’s objectives” insufficient basis for standing). Indeed, Frank Adoption Center has failed to allege the “concrete and demonstrable injury to the organization’s activities—with a consequent drain on the organization’s resources” that is required for standing. Nat’l Ass’n of Home Builders, 667 F.3d at 11 (internal quotes and alterations omitted). Second, any impact on Frank Adoption Center’s resources is not “fairly traceable” to Defendants because it has been “self-inflicted.” See Fair Employment Council of Greater Washington, Inc. v. BMC Mktg. Corp., 28 F.3d 1268, 1276-77 (D.C. Cir. 1994) (holding that an injury that is self-inflicted “is not really a harm at all” and is not fairly traceable to the government). Frank Adoption Center did not handle any Nepali intercountry adoption cases until 2013, when it “re-opened its doors as an entirely new agency, working in Nepal and employing a new staff, as well as a new Board of Directors.” See Exhibit A (noting that prior to 2013 the organization “worked . . . to place children from Eastern Europe with families living in the US and abroad,” until such adoptions “ceased in 2012”). As it acknowledges in the FAC and on its website homepage, the Suspension went into effect in 2010. Id.; FAC ¶ 3. Thus, at the time it began working on Nepali adoptions, Frank Adoption Center knew of the very limitation it now claims has rendered it “unable to fulfill [its] mission.” FAC ¶ 61; see Exhibit A (claiming that “Frank Adoption Center is now the only US agency authorized to work in Nepal” because all other organizations stopped handling such adoptions following the Suspension in 2010). To the extent Frank Adoption Center is “unable to fulfill [its] mission,” therefore, it is solely because it defined its “mission” as facilitating the very adoptions prohibited by the Suspension is seeks to challenge. This kind of “self-inflicted” injury does not establish standing for an organizational plaintiff. … Similarly, to the extent Frank Adoption Center has suffered any harm, it is due to “the mere expense of testing” the legal sufficiency of the Suspension, and has resulted not from any actions taken by Defendants, but rather from the Frank Adoption Center’s “efforts to increase legal pressure” on the government to lift the Suspension. See Fair Employment Council, 28 F.3d at 1276. Accordingly, Plaintiff Frank Adoption Center’s cannot establish that it has suffered an injury-in-fact sufficient for Article III standing, and its claims should be dismissed for lack of subject matter jurisdiction. II. Plaintiffs’ claim that the Suspension is unlawful fails to state a claim on which relief may be granted. To the extent Plaintiffs challenge that the Suspension “is not in accordance with the law,” see FAC ¶ 68, such challenge must be dismissed for failure to state a claim. See Fed. R. Civ. P. 12(b)(6). The INA provides ample authority for Defendants to suspend adjudication of adoption- based immediate relative visa petitions from a particular country where the procedures and documents from that country are not sufficiently reliable to enable them to determine whether prospective adoptees from that country are “orphans” within the meaning of the law. Moreover, Defendants’ imposition of the Suspension was a legitimate exercise of Defendants’ authority, and is not prohibited by or in conflict with any other provision of law. A. Defendants acted within their statutory authority in implementing the Suspension. First, as a matter of law the Suspension falls within the respective authorities of the Secretary of Homeland Security and the Secretary of State under the INA. The Secretary of 51 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW Homeland Security is charged with the administration and enforcement of all laws relating to the immigration and naturalization of aliens, except those laws explicitly delegated within the INA to another portion of the Executive Branch. 8 U.S.C. § 1103(a)(1). The Secretary of State is charged with the administration and enforcement of all “immigration and nationality laws relating to . . . the powers, duties, and functions of diplomatic and consular officers of the United States.” Id. § 1104(a)(1). Both Secretaries have the authority to “establish such regulations; … issue such instructions; and perform such other acts as [they] deem[] necessary for carrying out” their respective responsibilities. Id. §§ 1103(a)(3) and 1104(a). Immigration to the United States on the basis of an intercountry adoption, including the adoption of abandoned children from Nepal, undoubtedly implicates the authorities of both the Secretary of Homeland Security and the Secretary of State. … And both USCIS and the Department of State determined that the Suspension was necessary after concluding that the U.S. Government could “no longer reasonably determine whether a child documented as abandoned qualifies as an orphan” and “due to a lack of confidence that children presented as orphans are actually eligible for intercountry adoption.” See ECF No. 11-6 at 2. Thus, imposing the Suspension was a legitimate exercise of the authorities granted to the Secretaries by statute. B. The requirement of an I-604 “investigation” does not conflict with or prohibit the Suspension. Despite the foregoing statutory grants of authority, Plaintiffs allege that the Suspension is in violation of law because 8 U.S.C. § 1154(b) and 8 C.F.R. § 204.3(k) mandate that an “investigation” be conducted in every case. See FAC ¶ 38. Plaintiffs argue that Defendants are not carrying out this duty with respect to I-600 petitions subject to the Suspension. … As a threshold matter, Defendants are not contesting that § 1154(b) requires an “investigation” in every immigrant visa petition case. Notably, § 1154(b)’s requirement applies to all immediate relative cases under 8 U.S.C. § 1151(b)(2)(A)(i) and family-based cases under 8 U.S.C. § 1153(a). Importantly, however, § 1154(b) does not impose any specific timeframe within which the investigation must be completed—but rather indicates that no petition can be approved until after the investigation has been done and eligibility has been verified. See 8 U.S.C. § 1154(b) (“After an investigation of the facts in each case . . . the Attorney General shall, if he determines that the facts stated in the petition are true and that the alien in behalf of whom the petition is made is an immediate relative . . . approve the petition”). Thus, the scope and depth of any given investigation can vary from case to case. … Accordingly, Plaintiffs’ argument that § 1154(b) somehow prohibits the Suspension (and resulting administrative closure of their I-600 petitions) fails as a matter of law. … Section 1154(b) also does not specifically require that the investigation in an orphan case must be the I-604 orphan determination provided for in 8 C.F.R. § 204.3(k)(3). The use of the I- 604 orphan determination as the vehicle for the § 1154(b) process in orphan cases exists only by regulation. An important distinction exists, moreover, between whether an I-604 orphan determination must take place and when such determination must occur. This is particularly relevant in the case at hand, which involves a suspension of adjudication and not a requirement that all I-600 petitions be denied. Like § 1154(b), the regulation does not impose any specific timeframe within which the I-604 orphan determination must be completed, but only that completion must occur “before a petition is adjudicated abroad.” 8 C.F.R. § 204.3(k). Thus, both the regulation and § 1154(b) clearly link the duty to conduct I-604 orphan determination to the adjudication of the petition, 54 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW See Oetjen, 246 U.S. at 302 (“[T]he propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision.”); El-Shifa, 607 F.3d at 843 (“[T]he strategic choices directing the nation’s foreign affairs are constitutionally committed to the political branches.”). Finally, prudential considerations counsel against judicial intervention in this case. This Court’s inquiry into the propriety of the Suspension would require review, analysis, and, potentially, criticism of Nepal’s internal laws, policies, and practices, a function “for which the Judiciary has neither aptitude, facilities[,] nor responsibility.” Chicago & S. Air Lines, Inc. v. Waterman S.S. Corp., 333 U.S. 103, 111 (1948). That is particularly the case where, as here, Plaintiffs seek judicial review exclusively on basis of the APA. The remedies available pursuant to the APA are discretionary and equitable. As such, they provide weak authority for judicial interjection into sensitive matters of foreign affairs, and the Court should exercise the discretion provided to it under the APA to decline Plaintiffs’ invitation to opine on sensitive foreign policy decisions. Sanchez-Espinoza v. Reagan, 770 F.2d 202, 208 (D.C. Cir. 1985) (“[W]here the authority for our interjection into so sensitive a foreign affairs matter as this are statutes no more specifically addressed to such concerns than the Alien Tort Statute and the APA, we think it would be an abuse of our discretion to provide discretionary relief.”); Al-Aulaqi v. Obama, 727 F. Supp. 2d 1, 42-43 (D.D.C. 2010) (same). The U.S. Government, through its Embassy in Kathmandu and other officers in executive agencies, continues to evaluate whether the Suspension remains appropriate. See ECF No. 11-3 at 4 (discussing 2014 joint delegation to Nepal). USCIS and the Department of State have both the unique expertise and the constitutional responsibility to make that determination based on their assessment of the situation in Nepal, their consultations with other governments, and the political and foreign policy considerations implicated both by the Suspension and by any possible resolution. Accordingly, “[w]hether or not [the Suspension] is a matter so entirely committed to the care of the political branches as to preclude [the Court’s] considering the issue at all, . . . it at least requires the withholding of discretionary relief.” Sanchez-Espinoza, 770 F.2d at 208; Al-Aulaqi, 727 F. Supp. 2d at 42-43. In light of the sensitive, political nature of the questions presented by Plaintiffs’ claim, and given the great deference given to the political branches in regards to both foreign policy and immigration issues, the Court should dismiss the claim as non-justiciable. * * * * 2. Abduction a. Annual Reports As described in Digest 2014 at 71, the International Child Abduction Prevention and Return Act (“ICAPRA”), signed into law on August 8, 2014, increased the State Department’s annual Congressional reporting requirements pertaining to countries’ compliance with the 1980 Hague Convention on the Civil Aspects of International Child {“Convention”). In accordance with ICAPRA, the Department submits an Annual Report on International Parental Child Abduction to Congress by April 30 of each year and a report to Congress on the actions taken toward those countries determined to have a pattern of noncompliance in the Annual Report by July 30 of each year. See 55 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW International Parental Child Abduction page of the State Department Bureau of Consular Affairs, https://travel.state.gov/content/childabduction/en/legal/compliance.html. The 2016 Report on International Parental Child Abduction (IPCA) is available at https://travel.state.gov/content/dam/childabduction/complianceReports/2016%20IPCA %20Report%20-%20Final%20(July%2011).pdf. The 2016 report on actions taken is available at https://travel.state.gov/content/dam/childabduction/complianceReports/Child%20Abd uction%20Action%20Report%202016.pdf. The 2016 action report summarizes actions the Department of State took in countries cited in the annual report for demonstrating a pattern of noncompliance: Argentina, the Bahamas, Brazil, Colombia, Costa Rica, Dominican Republic, Ecuador, Egypt, Guatemala, Honduras, India, Jordan, Lebanon, Nicaragua, Oman, Pakistan, Peru, Romania, and Tunisia. ICAPRA defines a pattern of noncompliance as the persistent failure: (1) of a Convention country to implement and abide by provisions of the Hague Abduction Convention; (2) of a non-Convention country to abide by bilateral procedures that have been established between the United States and such country; or (3) of a non-Convention country to work with the Central Authority of the United States to resolve abduction cases. b. Hague Abduction Convention Partners On April 1, 2016, the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Convention) entered into force between the United States and Thailand. Thailand became the 74th partner of the United States under the Convention. As described in an April 1, 2016 State Department media note, available at http://2009- 2017.state.gov/r/pa/prs/ps/2016/04/255408.htm: The Convention is a valuable civil law mechanism for parents seeking the return of children who have been wrongfully removed from or retained outside their country of habitual residence by another parent or family member. Parents seeking access to children residing in treaty partner countries may also invoke the Convention. The Convention is critically important because it establishes a legal framework between partner countries to resolve parental abduction cases. c. Congressional Testimony On July 14, 2016, Karen L. Christensen, Deputy Assistant Secretary of State for Overseas Citizens Services in the Bureau of Consular Affairs, testified before the U.S. House of Representatives, Committee on Foreign Affairs, Subcommittee on Africa, Global Health, Global Human Rights and International Organizations. Deputy Secretary Christensen discussed abductions in her testimony, which follows. ___________________ 56 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW * * * * We appreciate your continued interest in the work we do to prevent and resolve international parental child abductions and your efforts to advocate on behalf of the parents affected by the heartbreak of abductions. We share with you the goals of preventing international parental child abductions, of the expeditious return of children to their countries of habitual residence, and of the strengthening and expansion of our partnerships under the 1980 Hague Convention on the Civil Aspects of International Child Abduction (Convention). We use the tools you gave us in the Sean and David Goldman International Child Abduction Prevention and Return Act of 2014 (the Act) to continue to leverage our diplomatic engagement with countries and we are getting results. Every day, my colleagues in the Bureau of Consular Affairs advance the foreign policy goals of the Department by assisting thousands of U.S. citizens affected by political crises, natural disasters, abuse, mental illness, and crime in all parts of the world. One of our priorities is international parental child abduction. In 2015, more than 600 children were reportedly abducted by a parent from the United States to another country. The State Department’s Bureau of Consular Affairs leads the U.S. government’s work in attempting to prevent and aid in the resolution of international abductions. In these heartbreaking cases and in others, we work consistently and tirelessly attempting to perform welfare and whereabouts checks when we have concerns for the well-being of U.S. citizens, issuing passports to U.S. citizens, including to children returning to the United States, and issuing visas, including to parents traveling to the United States to attend custody hearings in their child’s habitual residence, where appropriate. As we undertake long-term efforts to elicit cooperation from foreign governments on abduction cases, we actively encourage countries to become party to the Convention, which, in addition to being one of the best options for parents seeking the return of their children, is also the best means of ensuring other countries adhere to the same standards we do when addressing abduction and access cases. We work with parents, with counterparts in foreign governments, and with other U.S. government agencies to help resolve individual international parental child abduction cases. Each country, like our own, has its own judicial system, law enforcement entities, and cultural and family traditions. We tailor our strategy to deploy the most effective approach toward resolving each abduction case, including securing a child’s return to the place of habitual residence or parental access to children. Much of the day-to-day diplomatic engagement on abduction matters is handled by the Country Officers in the Office of Children’s Issues. Our team of experts, based in Washington, is continuously in direct touch with counterparts in foreign government central authorities. On a regular basis, they also work with foreign governments through foreign embassies in Washington and our U.S. diplomatic missions overseas. Senior U.S. officials often engage with their foreign counterparts to press for a prompt resolution to abduction cases. In the 2016 Annual Report on International Parental Child Abduction, Secretary Kerry emphasizes the U.S. commitment to combating international parental child abduction. In 2015, Assistant Secretary for Consular Affairs Ambassador Michele Thoren Bond pressed foreign governments on abduction issues in Washington and overseas. She made public statements, delivered protests to foreign ambassadors, and held meetings in foreign capitals and in Washington to voice U.S. concerns over international parental child abduction. 59 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW Our Engagement with Partners Strategically, a key focus for us is to prevent abductions. From a child’s first U.S. passport application, we work to protect children from international parental child abduction. U.S. law and regulation generally requires the consent of both parents for passport issuance to children under the age of 16. This minimizes the possibility that a passport could be issued to a child without the consent of both parents. In addition, enrolling a child in the Department’s Children’s Passport Issuance Alert Program (CPIAP) provides notification to the enrolling parent to ensure they are aware of the passport application. When a child is enrolled in CPIAP, the Prevention Branch of the Office of Children’s Issues reviews the passport application and all supporting documents prior to any passport issuance. Prevention officers reach out to the requesting parent to notify them of the application and confirm their consent to the passport application. The Department will only issue a passport to a minor if we have the consent of both parents or the documents submitted with the passport application demonstrate the legal authority to issue without such consent. In 2015 we enrolled 4,064 children in CPIAP and helped enroll 127 children in the Department of Homeland Security’s program aimed at preventing international parental child abduction. We work with U.S. and foreign law enforcement agencies, airlines, and others to prevent children from being unlawfully removed from the United States. Our prevention officers are available 24/7 and through our broad public affairs campaign we encourage parents to reach out to us for information that can help avoid abductions before they happen. We fielded 1,560 inquiries in 2015 from parents, attorneys, support organizations, and foreign governments seeking prevention information. The Department of State works closely with U.S. Customs and Border Protection (CBP) to help ensure that parents who have court orders that prohibit the international travel of a child can request assistance from CBP and U.S. law enforcement to prevent outbound abduction attempts. Key to the program’s success, and a byproduct of the Act’s mandated interagency working group, has been streamlined communications and information sharing among agencies on child abduction prevention initiatives. These new measures were instrumental in preventing more than 140 potential abductions since the law took effect. In April and October of 2015, we hosted Prevention of International Parental Child Abduction Interagency Working Group meetings to discuss strategies to enhance international parental child abduction prevention measures. Special Advisor for Children’s Issues Susan Jacobs chaired both meetings; officials from the U.S. Central Authority, the Department of Homeland Security, the Department of Justice, the Federal Bureau of Investigation, and the Department of Defense participated. Participants discussed ways to enhance current interagency abduction prevention strategies. At the October meeting, the U.S. Central Authority provided English- and Spanish-language Preventing International Parental Child Abduction brochures to all participants to distribute within their agencies. The working group will continue to meet regularly to streamline and improve interagency cooperation when working to prevent international parental child abduction cases originating from the United States. Conclusion Mr. Chairman, Ranking Member Bass, distinguished Members of the subcommittee, the Act has reinforced significantly our work to address the complex problem of international parental child abduction. In our efforts to return abducted children to their places of habitual residence we are using all effective means available to us under the law. This is our mission. The Department of 60 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW State weaves our concerns about international parental child abduction into our diplomatic discourse with nations around the globe. We want to set the Convention’s framework as a standard around the world for addressing and resolving abduction cases. Where that may not be an option, we can work toward bilateral and other arrangements to resolve abductions that take children from their homes and families in the United States. We can advance this through persistent diplomatic engagement, an approach that has produced results with many countries around the world. The Act specifies actions that include tactics and strategies that already figure into how the Department wields diplomacy, persuasion, and negotiation to advance U.S. interests throughout the world. We take actions based on the Annual Report and on the Act, and take action any time we consider it to be timely and effective. We frequently deliver demarches and discuss cases with senior government officials in countries that are not complying. These are very frank conversations, and we are adamant that each country is aware of the importance of this issue. The Act directs us to raise with the governments of the countries we cite in our report the reasons why we think they are not living up to their obligations with regard to international parental child abduction. We will report on those approaches and our continuing engagement with foreign countries in the follow up Action Report. We constantly strive to increase our effectiveness and our compliance and always look for ways to collaborate with our partners, including you, members of Congress who’ve committed so much time and energy to addressing this very important and urgent issue. * * * * 61 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW Cross References Evacuations from Yemen, Chapter 5.C.1. Children, Chapter 6.C. IACHR petition regarding consular notification, Chapter 7.D.1.g. Enhanced consular immunities, Chapter 10.E.3. Family law, Chapter 15. 64 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 2. Mutual Legal Assistance Treaties a. Kazakhstan On September 15, 2016, the Senate approved the resolution providing advice and consent to ratification of the Treaty Between the United States of America and the Republic of Kazakhstan on Mutual Legal Assistance in Criminal Matters, signed at Washington on February 20, 2015 (S. Treaty Doc. 114–11), subject to the declaration that the Treaty is self-executing. 162 Cong. Rec. S5865 (Sep. 15, 2016). The instruments of ratification were exchanged on December 6, 2016, and the Treaty entered into force on that date. b. Algeria Also on September 15, 2016, the Senate approved the resolution providing advice and consent to ratification of the Treaty Between the Government of the United States of America and the Government of the People’s Republic of Algeria on Mutual Legal Assistance in Criminal Matters, signed at Washington on April 7, 2010 (S. Treaty Doc. 114–3), subject to the declaration that the Treaty is self-executing. 162 Cong. Rec. S5865 (Sep. 15, 2016).*** c. Jordan On September 15, 2016, the Senate also approved the resolution of advice and consent to ratification of the Treaty Between the Government of the United States of America and the Government of the Hashemite Kingdom of Jordan on Mutual Legal Assistance in Criminal Matters, signed at Washington on October 1, 2013 (S. Treaty Doc. 114–4), subject to the declaration that the Treaty is self-executing. 162 Cong. Rec. S5865 (Sep. 15, 2016). 3. Extradition Cases a. Munoz Santos As discussed in Digest 2015 at 62-67, Mexico sought the extradition of Jose Luis Munoz Santos on kidnapping for ransom charges relating to the kidnapping of a woman and her two daughters in Mexico, which resulted in the death of one of the daughters. In concluding that there was probable cause to believe that Munoz Santos had committed the criminal offenses for which Mexico sought his extradition, the magistrate judge relied in part on witness statements from the fugitive’s alleged co-conspirators, the *** Editor’s note: The instruments of ratification were exchanged on April 20, 2017, and the Treaty entered into force on that date. 65 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW adult kidnapping victim and her husband, and another person who was allegedly invited to join the kidnapping conspiracy but declined. In attempting to challenge the evidence in support of probable cause, Munoz Santos sought to introduce evidence that the testimony against him from his alleged co-conspirators (Rosas and Hurtado) had been obtained through torture and had subsequently been recanted. The extradition judge excluded the torture allegations and recantations and issued a certification of extraditability. Munoz Santos filed a habeas petition challenging the certification in part on the ground that the torture allegation and recantations should not have been excluded. The district court denied the habeas petition; the U.S. Court of Appeals for the Ninth Circuit affirmed that denial; and Munoz Santos filed a petition for a rehearing en banc. On rehearing, the Court of Appeals determined that the torture allegations should have been considered by the district court in establishing whether there was probable cause. Munoz Santos v. Thomas, 830 F.3d 987 (9th Cir. 2016). Excerpts follow from the opinion of the en banc court. ___________________ * * * * Our task is to determine whether there is any competent evidence supporting the extradition court’s finding of probable cause. The extradition court found probable cause based largely on inculpating statements made by Rosas and Hurtado, Munoz’s alleged co-conspirators. We took this case en banc to clarify whether evidence that these statements were obtained by torture or other coercion constitute “contradictory” evidence inadmissible in an extradition proceeding, or admissible “explanatory” evidence. There can be little question that, standing by themselves, Rosas’s March 27, 2006 statement and Hurtado’s March 14, 2006 statement, whether considered separately, together, or together with statements from Hermosillo (the victim), Castellanos (her husband), and Andrade (who may have heard early plans for the kidnapping) constitute probable cause to believe that Munoz participated in the kidnapping of Hermosillo and her daughters. The statements were detailed and authenticated. Hurtado gave his statement in the presence of his public defender and under oath to a deputy district attorney in Mexico. Rosas submitted his statement in writing to the judge presiding over his case and asked that it be included in the court’s record. The extradition court, however, refused to consider subsequent statements by Rosas and Hurtado in which they recanted their initial statements, claiming that the Mexican police had coerced them into making those statements. The extradition court, and the district court on habeas, concluded that the allegations of torture were inadmissible because, as the district court described it, the claims were “inextricably intertwined” with the recantation statements. App. at 19–20; Extradition of Munoz Santos, 795 F.Supp.2d at 988–90. In other words, both courts reasoned that it was impossible to determine the credibility of the allegations of torture without determining the credibility of Rosas’s and Hurtado’s recantation statements. Because the credibility of the recantation statements could not be determined without a trial, those statements were inadmissible as “contradictory” evidence. App. at 19–20; Id. at 990. As we review Rosas’s and Hurtado’s various subsequent statements, which are quite detailed, their claims are of two types (and here we are simplifying): (1) I wasn’t involved, and (2) the reason I previously said I was involved is that I was tortured or otherwise coerced. The first type of statement is a recantation of the kind that courts have properly refused to consider. 66 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW For example, in Barapind we considered whether there was evidence to support Barapind’s extradition to India for crimes in connection with his activities as a leader in the All India Sikh Student Federation. In support of the charges, India produced an affidavit from a police inspector, who claimed that Nirmal Singh, an eyewitness, had identified Barapind as one of the principals in a shootout with government officials. Barapind, 400 F.3d at 752. Barapind produced a second affidavit from Nirmal in which he denied having identified Barapind at all. “The extradition court determined that Barapind’s evidence was insufficient to destroy probable cause, concluding that a trial would be required to determine who was telling the truth.” Id. We concluded that the court made the proper decision. Id. Similarly, in Bovio v. United States, the petitioner argued that probable cause was lacking, in part, because the major witness on which the government relied had admitted to lying during the investigation. 989 F.2d 255, 259 (7th Cir.1993). The Seventh Circuit rejected this argument, noting that “Bovio [had] no right to attack the credibility of witnesses,” because “issues of credibility are to be determined at trial.” Id. Consistent with both Barapind and Bovio, in Shapiro v. Ferrandina, the Second Circuit upheld the extradition court’s refusal to admit evidence “that one declarant of an inculpatory statement had once blackmailed Shapiro’s father and that certain fraudulent statements alleged to have been made by Shapiro had not in fact been made.” 478 F.2d at 905. The court noted that “such statements would in no way ‘explain’ ... the government’s evidence, but would only pose a conflict of credibility.” Id. Rosas’s and Hurtado’s recantations of their prior confessions are, indeed, contradictory. But their claims that their prior statements implicating themselves and Munoz were obtained under duress are not contradictory, but explanatory. Recanting statements contest the credibility of the original statements, presenting a different version of the facts or offering reasons why the government’s evidence should not be believed. Reliable evidence that the government’s evidence was obtained by torture or coercion, however, goes to the competence of the government’s evidence. The Supreme Court has long held that the Due Process Clause of the Fifth and Fourteenth Amendments bars the admission of coerced confessions. … We and other courts have sometimes explained the inadmissibility of coerced confessions in terms of their unreliability. … But the Supreme Court has made clear that “[t]he aim of the requirement of due process is not to exclude presumptively false evidence but to prevent fundamental unfairness in the use of evidence whether true or false.” Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941) (emphasis added). … The Court’s clarity on this point gives us a different perspective on Munoz’s claim that the principal evidence against him was obtained through coercion that may have amounted to torture. His claims of coerced testimony are independent of the truthfulness of the testimony. It is irrelevant whether Rosas’s and Hurtado’s statements about their involvement in the kidnapping are true; we do not care if they have indicia of reliability or whether they are corroborated by other evidence. If they were obtained by coercion in violation of the principles in the Due Process Clause of the Fifth Amendment, the statements are not competent and cannot support probable cause. In the language of the extradition cases, such statements are not “contradictory” because the truthfulness of the statements is not the issue. The fact of coercion is “explanatory” because, as the district court stated, it “addresses the circumstances under which the government’s witnesses made inculpatory statements.” App. at 12. 69 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW 1240; see Fernandez, 268 U.S. at 312, 45 S.Ct. 541. Evidentiary error alone is not a sufficient basis on which to grant a writ of habeas in the extradition context. See Collins, 259 U.S. at 316, 42 S.Ct. 469 (“It is clear that the mere wrongful exclusion of specific pieces of evidence, however important, does not render the detention illegal.”). The district court carefully considered whether, if the court excluded Rosas’s and Hurtado’s statements, there remained sufficient evidence to support a probable cause finding against Munoz. It concluded that the matter was “close,” but that there was not. App. at 17–18 n.41. We share the district court’s doubts. Neither Castellanos’s nor Hermosillo’s statements mention Munoz; at best they connect Rosas to the kidnapping, but only Rosas’s and Hurtado’s statements implicate Munoz. Without Rosas’s and Hurtado’s statements, only Andrade’s statement that Rosas and Munoz approached him about a “job” to extort “Beto” for two million pesos potentially connects Munoz to the kidnapping. This statement, however, lacks any other specifics that would suggest the “job” was a kidnapping involving Roberto Castellanos’s family. Standing alone, Andrade’s statement is insufficient to support probable cause. This is not a case in which there is overwhelming evidence available from other sources. Nevertheless, because the question is a close one, we think the extradition court should decide this question in the first instance, when it will have the opportunity to redetermine the admissibility of Munoz’s evidence and then consider all of the evidence together. * * * * b. Cruz Martinez The United States filed a supplemental brief on January 8, 2016 in Avelino Cruz Martinez v. United States, No. 14-5860 (6th Cir.), discussed in Digest 2015 at 67-70. The supplemental brief further supports the U.S. petition for rehearing of the appellate court’s decision to reverse the district court’s denial of habeas relief to a fugitive who claimed his extradition violated the lapse of time provision in the extradition treaty. Excerpts follow (with footnotes omitted) from the supplemental U.S. brief, which is available in full at https://www.state.gov/s/l/c8183.htm. ___________________ * * * * The Sixth Amendment’s speedy trial clause, by its terms, applies only to “criminal prosecutions.” Cruz contends, however, that dozens of extradition treaties (including the U.S.- Mexico Treaty here) incorporate the speedy trial right into extradition proceedings. He is wrong. All the traditional interpretive devices employed by this Court—including text, drafting history, post-ratification practice, official State Department views, and canons of construction—negate the suggestion that U.S. negotiators and their foreign counterparts imported Sixth Amendment protections into these treaties. The lapse-of-time phrase that Cruz clings to addresses limitations defenses, no more. I. The lapse-of-time phrase relates only to statute-of-limitations defenses. Article 7 of the U.S.-Mexico Treaty proscribes extradition where the fugitive’s prosecution or punishment “has become barred by lapse of time according to the laws of” either country. The language implies that “time” alone guides the inquiry. Or more simply, “time must 70 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW do the barring.” Martinez, 793 F.3d at 558 (Sutton, J., dissenting). Contrast that description with the Sixth Amendment, which identifies “no fixed point in the criminal process” at which a trial must commence. Barker v. Wingo, 407 U.S. 514, 521 (1972). The “amorphous quality of the right” instead turns on “a functional analysis” of, not just time, but the promptness of the defendant’s objections, the reason for the delay, and the prejudice to the defendant’s trial strategy, id. at 522, 530; see also United States v. Loud Hawk, 474 U.S. 302, 315 (1986) (treating “the reason for delay” as the critical factor in the Sixth Amendment inquiry). This mismatch between the Treaty’s hard-and-fast focus on “time” and the Sixth Amendment’s “ad hoc” “balancing” of other non-time factors dispels the notion that the former incorporates the latter. Barker, 407 U.S. at 530. The “history of the treaty” provides the other crucial clue as to meaning. Air France v. Saks, 470 U.S. 392, 396 (1985) (citation omitted). The previous U.S.-Mexico treaty prohibited extradition where the prosecution or penalty “had become barred by limitation,” whereas the current treaty proscribes extradition where the prosecution or penalty “has become barred by lapse of time.” Cruz believes the old language captured only statute of limitations defenses, whereas the new language authorizes Speedy Trial Clause (and other) claims. Supp. Br. 7. Cruz’s linguistic distinction is illusory. These two phrases—“barred by limitation” and “barred by lapse of time”—carried the same historical meaning. For example, the 1882 U.S.-Belgium extradition treaty foreclosed extradition where the prosecution had become “barred by limitation.” The United States captioned this provision, “Exemption by reason of lapse of time,” when formally publishing the treaty in statute. U.S.- Belg., art. IX, June 13, 1882, 22 Stat. 972. And when the United States switched course and adopted the lapse-of-time phrase as its preferred language around 1908, it referred to the phrase as a “limitation of time” provision in statutory publication. U.S.-Hond., art. v, Jan. 15, 1909, 37 Stat. 1616. This practice of freely interchanging the “limitation” and “lapse of time” phrases was hardly novel. A leading nineteenth century extradition treatise viewed the two variants as synonyms. See 1 J. Moore, A Treatise of Extradition § 373, at 569-570 (1891) (treaty provisions that prohibit extradition where prosecution is “barred by lapse of time” or “barred by limitation” incorporate the statutes of limitations of the requesting (or requested) country). The Government of Mexico interchanged these terms as well. In 1934, Mexico refused to extradite a fugitive, Alfonso Davila, to the United States to face embezzlement charges. The treaty then in force between the countries forbade extradition requests “barred by limitation,” but the Mexican government’s communication to the United States refusing extradition explained that Davila’s “punishment or the penal action is fulfilled by the simple lapse of time.” Ltr. from Mexican Minister of Foreign Affairs, Nov. 13, 1934, reprinted in G.H. Hackworth, 4 Digest of Int’l L. § 339, at 194 (1942). These historical practices confirm the government’s textual reading. If the “barred by limitation” phrase refers only to limitations defenses (as Cruz readily admits, see Supp. Br. 6-7), then the “barred by lapse of time” phrase is similarly constrained to limitations defenses. Relying on these same guideposts, the Eleventh Circuit rejected the claim that Cruz now raises. “[F]or over a century,” the court observed, “the term ‘lapse of time’ has been commonly associated with a statute of limitations violation.” Yapp v. Reno, 26 F.3d 1562, 1567; id. at 1569 (Carnes, J., dissenting) (agreeing on this point). 71 DIGEST OF UNITED STATES PRACTICE IN INTERNATIONAL LAW Cruz does not address this historical record. He instead retorts (Supp. Br. 5, 6 n.3, 18) that the lapse-of-time phrase linguistically embraces any delay-based claim, be it the Speedy Trial Clause, the Speedy Trial Act, or common-law laches. But his effort takes “[t]he definition of words in isolation,” Dolan v. U.S. Postal Service, 546 U.S. 481, 486 (2006), which is itself a perilous venture, but even more so in the field of treaty construction, where “the context in which the written words are used” carries particular force, Air France, 470 U.S. at 397. The fact that litigants and courts might employ similar phrasing when discussing other legal doctrines does not establish that the drafters of this country’s extradition treaties engraved those doctrines into the treaties. II. The lapse-of-time phrase does not incorporate speedy trial rights. Cruz’s effort to incorporate speedy trial protections into the U.S-Mexico Treaty’s lapse- of-time phrase also ignores constitutional history. As recounted above, the lapse-of-time phrase first appeared when the United States negotiated extradition treaties with Spain and the Netherlands in 1877 and 1880. The ratifying histories of these treaties contain no mention of the Speedy Trial Clause. Moreover, the drafters of these agreements—State Department officials and their foreign counterparts—would not have understood any connection between the lapse-of-time language and the Sixth Amendment. The Supreme Court did not announce the constitutional speedy trial right until 1905, see Beavers v. Haubert, 198 U.S. 77 (1905), and a full exposition emerged only in 1972, see Barker, 407 U.S. at 515, long after the United States had adopted the lapse-of-time phrase as standard treaty language. To view the lapse-of-time language as incorporating the Speedy Trial Clause, as Cruz urges, would mean that State Department officials in the 1870s deliberately seeded a dormant, yet-to-be-recognized federal right into this country’s extradition treaties, which sprouted only when the Supreme Court engaged the issue decades later. That fantastic proposition, where the State Department covertly bound our foreign treaty partners to an inchoate U.S. constitutional principle, lacks support. The renegotiation of U.S. extradition agreements in the 1970s and 1980s (including the 1978 U.S.-Mexico Treaty here) further undermines Cruz’s position. While the Senate Report accompanying the U.S.-Mexico Treaty does not address the issue, the Senate Reports accompanying other contemporaneous treaties—which also contain the lapse-of-time phrase— announced that the language innocuously referred to “statute of limitation” bars. See S. Exec. Rep. No. 93-19, at 3 (1973) (Paraguay); S. Exec. Rep. No. 96-20, at 24 (1979) (Germany); S. Exec. Rep. No. 98-29, at 5 (1984) (Thailand); S. Exec. Rep. No. 98-30, at 6 (1984) (Costa Rica); S. Exec. Rep. No. 98-31, at 6 (1984) (Jamaica). And at no point did the Reports mention constitutional speedy trial considerations when listing the substantive changes envisioned by the renegotiation process. See S. Exec. Rep. No. 96-21, at 19 (1979) (Mexico) (highlighting the various “changes in the new treaty,” but omitting any mention of speedy trial rights). Cruz dismisses the significance of Senate Reports in treaty disputes. Supp. Br. 21. The Supreme Court has, however, consulted them when construing the intent of a treaty’s signatories. See United States v. Stuart, 489 U.S. 353, 366-368 (1989). The renegotiated U.S.-Germany extradition treaty, which the Senate considered at the same time as the U.S.-Mexico Treaty under review here, bears special mention. Congressional documents associated with the U.S.-Germany treaty (see T.I.A.S. 9785) show that the relevant Senate Report reflected official State Department testimony. The State Department had testified before the Senate that the lapse-of- time phrase in the U.S.-Germany treaty “discusses statute of limitations” and “is a standard provision in U.S. extradition treaties.” Hearing on Nine U.S. Treaties on Law Enforcement and