Over the past year, dozens of Yemeni-Americans visiting their ancestral homeland have had their US passports summarily revoked or confiscated by the embassy in Sanaa without any clear legal basis, effectively stranding them outside the United States. Last month, a coalition of US civil rights groups submitted a report on this practice to the Committee on Elimination of Racial Discrimination (CERD) pursuant to the International Convention on the Elimination of All Forms of Racial Discrimination. We asked Yaman Salahi and Nasrina Bargzie, staff attorneys at the National Security and Civil Rights Program at Asian Americans Advancing Justice: Asian Law Caucus who co-authored this report with eight other legal rights groups, to shed light on the issue.
How has the US government been taking passports away from Yemeni-Americans?
The experiences people report have the same essential ingredients. The typical tale involves a Yemeni-American man (all of our cases so far involve men) who has been living in the United States, as a US citizen, since childhood. As an adult, he travels to Yemen to visit his parents, wife or children, and needs to apply for a visa for his spouse or relative, or to document his children as US citizens born in Yemen. He requests an appointment, for which there is often a six-month wait. He travels hundreds of miles through politically unstable territory to reach the embassy in Sanaa. There, he typically waits several hours before being called. In the course of the appointment at the consular window, a law enforcement officer takes the petitioner away to an interrogation room for several hours. The officer aggressively lobs groundless accusations of fraud at him, sometimes accusing him of having another name, sometimes accusing him of lying about who his parents are. Keep in mind that this man has already proven, to the satisfaction of a US government official, that he is a US citizen, and no one has taken any action to challenge that. He’s got valid proof of US citizenship, like a Certificate of Citizenship, a Certificate of Naturalization or a Consular Report of Birth Abroad.
But that’s not enough. The officer doesn’t believe anything the man says and at this point is not vetting the application, but basically reinvestigating the man’s claim of citizenship — an investigation with which the man has absolutely no obligation to cooperate. The officer then terrorizes the individual with threats that failure to confess could result in several years of prison time and denial of all of the family’s applications, which would be devastating to the family, subjecting them to indefinite separation. Sometimes there are also false promises that the officer just wants to help out, that everything will be fine and that all the paperwork will be processed as soon as a confession is signed. So, after hours in an interrogation room, with all of his identity papers and legal documents in the officer’s possession, without access to an attorney or other legal assistance, the individual feels like he has no choice but to sign the papers. Of course, once the papers are signed, many people are simply dismissed from the embassy. Their passports are not returned, and their applications are not approved. No notice, no explanation, no instructions for appealing or for returning to the United States.
The use of forced confessions is especially alarming; if the government had hard proof of fraud, it wouldn’t need confessions. It’s hard to imagine why anyone would sign one and risk losing everything without being coerced or misled. That may explain why the reported encounters have the hallmarks of coercion — such as threats of harm and hours of detention in an interrogation room — and why the people who signed papers were generally surprised by what happened to them next. They were stuck for months without passports and without any help from the embassy. Advocates have reported that at subsequent hearings challenging passport revocations, the government’s sole piece of evidence was these sworn confessions. There was no corroboration. This fact puts the entire practice on very shaky ground, and the risk of error is very high.
We often hear about the US in Yemen through the prism of drone strikes, such as the killings of US citizen Anwar al-Awlaqi and his teenage son ‘Abd al-Rahman. How does this practice of revoking and confiscating passports fit into US Yemen policy?
The US government’s foreign policy priorities in Yemen have essentially redefined the entire country as a battleground and reduced its people to nothing more than security threats. This mentality explains the unfair and harsh treatment of Yemeni-Americans at the US Embassy in Sanaa. A June 2010 State Department report explains that “Embassy Sanaa…has become the key forward operating base for the broad spectrum of counterterrorism efforts against al-Qaeda in the Arabian Peninsula,” a remarkable description of an embassy, a place which we normally envision as a diplomatic outpost or a service center for citizens abroad.
There is nothing new about efforts to prevent immigration fraud, but the mobilization of a national security framework to rationalize attendant abuses is troubling. The State Department report explains, “The world recently has awoken to the serious threat of terrorism in Yemen, putting Sanaa’s visa and passport services in the homeland security crosshairs.” The prospect of unauthorized migration from Yemen is framed as nothing less (and nothing more) than a “risk to US homeland security,” even though there is no reason to think that the general reasons for such migration differ from the reasons for migration elsewhere in the global south — economic inequality and political instability. “Issuing a passport or visa to a terrorist is a real risk, and Embassy Sanaa works hard to make sure that their product is free of fraud,” according to a Department internal report. The consular staff is thus sensitized to think of routine applicants of Yemeni origin, including US citizens, as potential terrorists, and to see fraud everywhere. In such an atmosphere, and without proper safeguards, it’s no wonder this translates into unjust encounters that Yemeni-Americans view as insults to their dignity.
Can you tell us a bit about the Yemeni-American community and how it is viewed by the State Department?
In 2010, the State Department estimated that there were 55,000 US citizens living in Yemen. In the US, there are large Yemeni-American communities in Oakland, Fresno, Bakersfield, Dearborn, Brooklyn and Buffalo.
One thing worth noting is the State Department’s unflattering view of Yemeni-Americans who live in Yemen. It says, “Many of the US citizens have no connection to the United States except their US passport,” and “a large number of the Yemeni-Americans reflect local standards of illiteracy and lack of education.” This elitist and troubling language from the State Department relies on a loaded “cultural” definition of “American” rather than a legal one. Indeed, in other places, the State Department contrasts Yemeni-Americans in Yemen with “true expatriates, including Islamic converts who have come to Yemen for religious studies.” Even in the legal sphere, formalistic conceptions of US citizenship are being displaced by culturalist, racist or politically loaded conceptions. At the same time these Yemeni-American citizens were being stranded in Yemen by confiscation of their passports, the State Department issued a travel advisory warning US citizens to leave Yemen immediately, which these people obviously couldn’t do. It is hard to imagine US citizens who are not of Yemeni origin being treated this way at the embassy.
How does US law ordinarily govern the revocation of citizenship?
To be clear, none of the passport cases that we are aware of so far involve formal revocation of US citizenship, but we are concerned that the passport revocations could be a precursor of things to come. What’s disturbing is the way in which a passport revocation sidesteps all of he protections for citizenship that have been put in place by the Supreme Court. Under current US law, natural-born citizens can only lose their citizenship through voluntary renunciation. And the government can only take US citizenship away from naturalized citizens if it can prove “material and substantial” fraud through “clear, unequivocal and convincing” evidence in a federal court. By contrast, under present rules, a passport can be taken away before any hearing, and the subsequent hearing isn’t in a court with its attendant protections; rather, it’s convened informally before a State Department employee who plays the role of hearing officer and a State Department lawyer who presents the government’s case. Given the sharp disparity, CUNY law professor Ramzi Kassem has called this practice in Yemen “proxy denaturalization” because the government is achieving an effect that it otherwise could not if it followed the rigorous procedures designed to protect individual rights.
What can be done to challenge these arbitrary measures?
Tactics are evolving. In mid-2013, when reports began to trickle in, we published a “Know Your Rights” pamphlet advising people to exercise caution when going to the US embassy in Sanaa. Since then we have posted periodic updates on the website, MyEmbassyRights.org, but it remains an ongoing problem and one that the State Department has not adequately addressed. Our latest shadow report to CERD asks the UN to get involved, but such efforts need to be complemented by a community mobilization strategy as well as other interventions. The work is ongoing.