Digest of United States Practice in International Law · 2019-09-06 · If you would like to be placed on Standing Order status for the Digest of United States Practice in International

Digest of

United States Practice

in International Law

2006

00-Cummins-Prelims.indd i00-Cummins-Prelims.indd i 10/22/07 11:22:07 PM10/22/07 11:22:07 PM

00-Cummins-Prelims.indd ii00-Cummins-Prelims.indd ii 10/22/07 11:22:08 PM10/22/07 11:22:08 PM

1

INTERNATIONAL LAW INSTITUTE

DIGEST OFUNITED STATES PRACTICE

IN INTERNATIONAL LAW

2006

Sally J. CumminsEditor

Office of the Legal Adviser

United States Department of State

00-Cummins-Prelims.indd iii00-Cummins-Prelims.indd iii 10/22/07 11:22:08 PM10/22/07 11:22:08 PM

The Digest of United States Practice in International Law is co-published by Oxford University Press and the International Law Institute under agreement with the United States Department of State, Office of the Legal Adviser. The con-tents of the Digest, including selection of documents and preparation of editorial commentary, are entirely under the auspices of the Office of the Legal Adviser.

INTERNATIONAL LAW INSTITUTE

For fifty years the International Law Institute has addressed issues of interest to the international legal community through research, publishing, training, and technical assistance. For information on the activities of the Institute:

Publishing OfficeInternational Law InstituteThe Foundry Building1055 Thomas Jefferson St., NWWashington, DC 20007

202-247-6006202-247-6010 (fax)e-mail: [email protected]: www.ili.org

If you would like to be placed on Standing Order status for the Digest of United States Practice in International Law, whereby you will automatically receive and be billed for new annual volumes as they publish, please contact a Customer Service Representative.

In the United States, Canada, Mexico, Central and South America, contact:

Customer ServiceOxford University Press USA2001 Evans RoadCary, NC 27513Email: [email protected] (toll free in US): 1-866-445-8685 Phone (international customers): 1-919-677-0977Fax: 1-919-677-1303

In the United Kingdom, Europe, and Rest of World, contact:

Customer ServiceOxford University Press Saxon Way West, CorbyNorthants, NN18 9ESUnited KingdomEmail: [email protected] Phone: +44 1536 741017Fax: +44 1536 454518

The format and organization of this book are protected under copyright © by the International Law Institute, 2007. All rights reserved. No parts of the book may be reproduced, stored, or transmitted in any form or by any means, including mechanical, electronic, or photocopying without prior written permission from the International Law Institute. No claim to original U.S.Government works.

ISBN: 978-0-19-533948-2

00-Cummins-Prelims.indd iv00-Cummins-Prelims.indd iv 10/22/07 11:22:08 PM10/22/07 11:22:08 PM

v

Table of Contents

PREFACE xxiii

INTRODUCTION xxv

NOTE FROM THE EDITOR xxix

Chapter 1 NATIONALITY, CITIZENSHIP AND IMMIGRATION 1A. NATIONALITY AND CITIZENSHIP 1

1. Statelessness 12. Determination of Citizenship in In Vitro Case 2

B. PASSPORTS 41. Western Hemisphere Travel Initiative 42. Passport Card 113. Electronic Passport 134. Limitations on Passports 15

a. Child support arrearages 15b. Alleged collaboration with U.S.-designated

terrorist group in foreign country 165. Lost and Stolen Passports 17

C. IMMIGRATION AND VISAS 181. Bases for Ineligibility 18

a. Material support to terrorist organization: Required decision 18

b. Illegal reentry 29c. Conviction for aggravated felony 33

(1) Felony under state law only 33(2) Retroactive application 36

2. Modifi cations in Procedures Related to Cuban Migrants 40a. Family reunifi cation 40b. Medical personnel in third countries 41

3. Suspension of Entry Under INA Section 212(f) 424. Continued Detention of Un-admitted Alien Ordered

Removed 455. Secure Fence Act and Comprehensive Immigration Reform 50

00-Cummins-Prelims.indd v00-Cummins-Prelims.indd v 10/22/07 11:22:08 PM10/22/07 11:22:08 PM

D. REFUGEES AND ASYLUM 521. Refugees 52

a. Resettlement of certain Burmese refugees 52(1) Karen refugees 53(2) Chin refugees 55

b. Presidential determination and authorization for refugees in fi scal year 2007 55

c. Democratic People’s Republic of Korea (North Korea) 56

d. Termination of Liberian eligibility for family reunifi cation refugee admissions processing 59

2. Asylum: Uzbek Asylum Seekers 60Cross References 61

Chapter 2 CONSULAR AND JUDICIAL ASSISTANCE AND RELATED ISSUES 63A. CONSULAR NOTIFICATION, ACCESS, AND ASSISTANCE 63

1. Consular Notifi cation 63a. Suppression of evidence and change of procedural

default rule as remedies for U.S. violation of obligation 63

b. Private right of action for money damages against law enforcement offi cials responsible for violation 75(1) Jogi v. Voges 75(2) Cornejo v. San Diego 86

c. Medellin 862. Consular Assistance 88

a. Deaths and estates 88b. Bilateral treaties 88

B. CHILDREN 891. Adoption 89

a. Accreditation and approval 89b. Certifi cations 95c. Preservation of records and reporting 96d. Consular offi cer procedures 98

2. Abduction 983. Parental Access 103

C. PRISONER ISSUES 104D. JUDICIAL ASSISTANCE 105

1. Apostille 1052. Russia: Letters Rogatory 107

Cross References 110

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWvi

00-Cummins-Prelims.indd vi00-Cummins-Prelims.indd vi 10/22/07 11:22:08 PM10/22/07 11:22:08 PM

Chapter 3 INTERNATIONAL CRIMINAL LAW 111A. EXTRADITION, MUTUAL LEGAL ASSISTANCE

AND RELATED ISSUES 1111. Treaties 111

a. Extradition treaties 111(1) U.S.-UK extradition treaty 111

(i) Hearing before Senate Foreign Relations Committee 111

(ii) Questions for the record 114(iii) SFRC report to the Senate and Senate

advice and consent to ratifi cation 122(2) U.S.-EU extradition agreement 127(3) Other bilateral extradition treaties 138

b. Mutual legal assistance treaties 139(1) U.S.-EU mutual legal assistance agreement 139(2) Other mutual legal assistance treaties 147

(i) Malaysia 147(ii) Ratifi cation of treaties with Germany

and Japan 1482. Judicial Reviewability of Secretary of State Decision to

Extradite 148a. Mironescu v. Costner 148b. Hoxha v. Levi 156

3. Extradite or Prosecute 1594. Renditions 160

a. Remarks by Legal Adviser 160b. Litigation in U.S. courts 163

5. Cooperation with Eurojust in Criminal Enforcement Matters 163

B. INTERNATIONAL CRIMES 1671. Terrorism 167

a. Country reports on terrorism 167b. Access to airline passenger name record data 168c. Countries not fully cooperating with U.S.

antiterrorism efforts 172d. State sponsors of terrorism 173

(1) Designations and rescission 173(2) Implementing regulations 177

e. U.S. actions against support for terrorists 180(1) Litigation 180

(i) United States v. Afshari 180(ii) Humanitarian Law Project v. Gonzales 180

Table of Contents vii

00-Cummins-Prelims.indd vii00-Cummins-Prelims.indd vii 10/22/07 11:22:09 PM10/22/07 11:22:09 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAW

(iii) Humanitarian Law Project v. U.S. Department of the Treasury 183

(iv) Kahane Chai v. Department of State 191(2) 1624 Report 199(3) New sanctions 210

f. UN Convention for the Suppression of Unlawful Acts Against the Safety of Maritime Navigation 211

2. Genocide, War Crimes, and Crimes Against Humanity 212

3. Narcotraffi cking 212a. Counternarcotics certifi cation 212b. International production and traffi cking of

methamphetamine 216c. Designations under the Kingpin Act 220d. Litigation related to 1971 UN Convention on

Psychotropic Substances 221e. Drug interdiction assistance 225

4. Traffi cking in Persons 226a. Traffi cking in persons reports 226b. Presidential determination 227

5. Corruption 229a. UN Convention Against Corruption 229b. National Strategy Against High-Level Corruption 234c. Inter-American Convention Against Corruption 237

6. Cybercrime 2397. Money Laundering 241

a. Identifi cation of jurisdictions of primary concern 241b. Imposition of sanctions on foreign fi nancial

institutions 243(1) Final rule: Commercial Bank of Syria 243(2) Final rule: VEF Banka 249(3) Withdrawal of fi nding: Multibanka 253

c. Statutory amendment 254C. INTERNATIONAL CRIMINAL TRIBUNALS AND

RELATED ISSUES 2541. Ad Hoc Criminal Tribunals and Related Issues 254

a. Overview 254b. International Criminal Tribunal for the former

Yugoslavia 259c. Iraqi High Tribunal 269d. Lebanon: Tribunal of an international character 272e. Special Court for Sierra Leone 275

vii i

00-Cummins-Prelims.indd viii00-Cummins-Prelims.indd viii 10/22/07 11:22:09 PM10/22/07 11:22:09 PM

2. International Criminal Court 277a. Provision of military assistance 278

(1) Waivers 278(2) Statutory amendment 279

b. Economic Support Fund 279Cross References 279

Chapter 4 TREATY AFFAIRS 281A. CAPACITY TO MAKE 281

Unilateral Acts of States 281B. CONCLUSION, ENTRY INTO FORCE, RESERVATIONS,

APPLICATION, AND TERMINATION 2831. Conclusion 2832. Interpretation 284

a. In context of ICCPR 284b. Role of travaux préparatoires 287

3. Reservations 288a. International Convention for the Suppression

of Terrorist Bombings 288(1) Military exception 288(2) Extradition and mutual legal assistance 290

b. Athens Convention 292c. Issues addressed by the International Law

Commission 294(1) Reservations to treaties 294(2) Effect of armed confl icts on treaties 295

4. U.S. Treaty Affairs Regulations 2955. Treaty Affairs Webpage 298


Chapter 5 FOREIGN RELATIONS 301A. FOREIGN RELATIONS LAW OF THE UNITED

STATES 3011. Status of Coalition Provisional Authority 3012. Presidential Signing Statements 3053. U.S. Sovereign Immunity in Foreign Relations

Context 307a. Passport-related 307b. Foreign service offi cer in line of duty abroad 308

Table of Contents ix

00-Cummins-Prelims.indd ix00-Cummins-Prelims.indd ix 10/22/07 11:22:09 PM10/22/07 11:22:09 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWx

B. CONSTITUENT ENTITIES 3111. Status of Puerto Rico 3112. Commonwealth of the Northern Mariana Islands:

Claim to Submerged Lands 3153. Republic of the Marshall Islands 316


Chapter 6 HUMAN RIGHTS 327A. GENERAL 327

1. Human Rights Reports 3272. Human Rights Council 328

a. Establishment 328b. U.S. statements 328

(1) Composition and procedures 328(2) Special sessions 335

(i) Occupied Palestinian Territories 335(ii) Lebanon 338(iii) Darfur 340

c. Universal periodic review 341d. Mandate review, expert advice and complaint

procedure 3413. Cuba 3434. U.S. Implementation of the International Covenant

on Civil and Political Rights before the UN Committee on Human Rights 346a. Committee consideration 346b. U.S. written responses to committee questions 350

B. DISCRIMINATION 3711. Race 3712. Gender 372

a. Support for UN Development Fund for Women 372b. Advancement of women 373c. Violence against women 374

(1) Human Rights Council report 374(2) UN General Assembly resolution 375

3. Religion 376a. Report on International Religious Freedom and

designations of countries of particular concern 376b. UN General Assembly: Interreligious and cultural

dialogue 379

00-Cummins-Prelims.indd x00-Cummins-Prelims.indd x 10/22/07 11:22:09 PM10/22/07 11:22:09 PM

c. UN Human Rights Council: Religious freedom and freedom of expression 380

4. Disabilities 382C. CHILDREN 384

1. Sale of Children, Child Prostitution and Child Pornography 384

2. Rights of the Child 3853. Children in Armed Confl ict 387

D. ECONOMIC, SOCIAL AND CULTURAL ISSUES 389E. INDIGENOUS PEOPLE 394F. TORTURE AND OTHER CRUEL, INHUMAN OR

DEGRADING TREATMENT OR PUNISHMENT 4011. Speech to Royal Institute of International Affairs 4012. U.S. Implementation of Convention Against Torture 403

a. Committee consideration 403b. Responses to further questions 409

3. Statement to Human Rights Council 4214. Indictment Under U.S. Antitorture Law 422

G. GENOCIDE, CRIMES AGAINST HUMANITY AND RELATED ISSUES 422

H. DETENTIONS AND MISSING PERSONS 4241. Disappearances 424

a. Draft convention on enforced disappearances 424b. Working Group on Enforced and Involuntary

Disappearances 4282. Arbitrary Detention 429

I. JUDICIAL PROCEDURE, PENALTIES, AND RELATED ISSUES 4301. Alien Tort Statute 431

a. Sarei v. Rio Tinto 431(1) Ninth Circuit decision 431(2) U.S. amicus brief in support of petition for

rehearing 436b. Mujica v. Occidental Petroleum Corporation 450c. Bancoult v. McNamara 455d. Presbyterian Church of Sudan v. Talisman 460e. Matar v. Dichter: No cause of action 465f. Legal Adviser letters 476

2. Torture Victim Protection Act 479a. No cause of action 479b. Exhaustion requirement: Futility 482c. Failure to meet statutory requirements 484

Table of Contents xi

00-Cummins-Prelims.indd xi00-Cummins-Prelims.indd xi 10/22/07 11:22:09 PM10/22/07 11:22:09 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWxii

J. RULE OF LAW AND DEMOCRACY PROMOTION 486K. HUMAN RIGHTS AND COUNTER-TERRORISM 487Cross References 488

Chapter 7 INTERNATIONAL ORGANIZATIONS 489A. UNITED NATIONS: SECURITY COUNCIL 489

1. Reform 4892. Jurisdiction 490

B. OTHER ISSUES 4911. Responsibility of International Organizations 4912. International Coffee Organization Reforms 4933. International Mobile Satellite Organization:

Amendment Concerning Function 494Cross References 497

Chapter 8 INTERNATIONAL CLAIMS AND STATE RESPONSIBILITY 499A. GOVERNMENT-TO-GOVERNMENT CLAIMS 499

1. Diplomatic Protection 4992. U.S.-Albania Claims Settlement Agreement 502

B. CLAIMS OF INDIVIDUALS 5041. Nazi Era Claims 504

a. Freund v. France 504b. Gross v. German Foundation Industrial Initiative 507c. Mandowsky v. Dresdner Bank, AG 517

2. Agent Orange Litigation 522Cross References 526

Chapter 9 DIPLOMATIC RELATIONS, SUCCESSION AND CONTINUITY OF STATES 527A. ESTABLISHMENT OF U.S. DIPLOMATIC POSTS 527

1. Libya 5272. Monaco 5283. Montenegro 5284. San Marino 529

00-Cummins-Prelims.indd xii00-Cummins-Prelims.indd xii 10/22/07 11:22:09 PM10/22/07 11:22:09 PM

B. EXECUTIVE BRANCH CONSTITUTIONAL AUTHORITY OVER FOREIGN STATE RECOGNITION AND PASSPORTS 5301. D.C. Circuit Court of Appeals Opinion 5302. U.S. Submissions 533

Chapter 10 IMMUNITIES AND RELATED ISSUES 549A. SOVEREIGN IMMUNITY 549

1. Foreign Sovereign Immunities Act 549a. Scope of Application 550

(1) Defi nition of foreign state 550(i) Organ of foreign state: Powerex Corp. v.

Reliant Energy Services 550(ii) Core functions test: Garb v. Poland 558

(2) Default judgments 562(3) Waiver: Af-Cap, Inc. v. Republic of Congo 562(4) Third-party assertion of immunity: Rubin v.

Iran 564b. Exceptions to immunity under the FSIA 572

(1) Commercial activity: Garb v. Poland 572(2) Expropriations: Garb v. Poland 572(3) Certain acts of terrorism 577

(i) Sudan: Owens v. Sudan 578(ii) Iran: Heiser v. Iran 581(iii) Iraq: Vine v. Republic of Iraq 584

(4) Rights in immovable property: City of New York v. Permanent Mission of India 592

c. Contempt sanctions: Af-Cap v. Congo 603d. Collection of judgments 612

(1) Attachment of property belonging to a foreign state: Ministry of Defense v. Elahi 612

(2) Presumption of immunity for foreign state property: Rubin v. Iran 621

(3) Attachment of diplomatic properties: FG Hemisphere Associates, LLC v. Democratic Republic of Congo 621(i) Excusable neglect 621(ii) Immunity from attachment under FSIA 626

2. Immunity of Foreign Offi cials For Offi cial Acts 629

Table of Contents xiii

00-Cummins-Prelims.indd xiii00-Cummins-Prelims.indd xiii 10/22/07 11:22:10 PM10/22/07 11:22:10 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWxiv

B. HEAD OF STATE IMMUNITY 652C. DIPLOMATIC AND CONSULAR PRIVILEGES AND

IMMUNITIES 6531. Immunity of Diplomatic Agent, Recognition by

Receiving State: United States v. Kuznetsov 6532. Immunity of Diplomatic Properties 6583. Immunity of Members of Special (Ad Hoc) and

Permanent Diplomatic Missions 6624. Inviolability 681

D. INTERNATIONAL ORGANIZATIONS 6821. International Telecommunications Union 6822. Holy See and African Union 684


Chapter 11 TRADE, COMMERCIAL RELATIONS, INVESTMENT, AND TRANSPORTATION 685A. TRANSPORTATION BY AIR 685

Actual Control of U.S. Air Carriers 685B. NORTH AMERICAN FREE TRADE AGREEMENT 686

1. NAFTA Free Trade Commission Joint Statement 6862. Investment Dispute Settlement under Chapter 11 688

a. Grand River Enterprises Six Nations, Ltd. v. United States of America 688

b. In Re NAFTA Chapter 11/UNCITRAL Cattle Cases 693

c. Softwood Lumber Consolidated Proceeding 702d. Glamis Gold, Ltd. v. United States of America 709

3. Litigation Challenging Constitutionality of NAFTA Binational Panel Review Provisions 726

C. WORLD TRADE ORGANIZATION 7371. Dispute Settlement 737

a. WTO Disputes brought by the United States 737(1) European Communities—Measures affecting

the approval and marketing of biotech products (DS291, DS292 and DS293) 737

(2) European Communities—Selected customs matters (DS315) 739

(3) China—Measures affecting imports of automobile parts (DS340) 741

(4) Turkey—Measures affecting the importation of rice (WT/DS334) 742

00-Cummins-Prelims.indd xiv00-Cummins-Prelims.indd xiv 10/22/07 11:22:10 PM10/22/07 11:22:10 PM

b. WTO disputes brought against the United States 743(1) United States—Measures relating to zeroing

and sunset reviews (DS322) 743(2) United States—Continued Dumping and Subsidy

Offset Act of 2000 (“CDSOA”)(DS217/234) 744(3) United States—Final countervailing duty

determination with respect to certain softwood lumber from Canada (DS257); Final dumping determination on softwood lumber from Canada (DS264); Investigation of the U.S. International Trade Commission in softwood lumber from Canada (DS277); and Reviews of countervailing duty on softwood lumber from Canada (DS311) 745

2. WTO Accession 745a. Ukraine 745b. Vietnam 748c. Russia 751

3. Doha Development Agenda 753D. OTHER TRADE AGREEMENTS AND RELATED ISSUES 754

1. U.S.-EU Agreements 754a. Agricultural and industrial products 754b. Services 755c. Wine 757

2. U.S.-Mexico 757a. Tequila 757b. Cement 758

3. Trade and Investment Instruments 759a. Mauritius 759b. ASEAN 760c. Other TIFAs 761d. Switzerland 761

4. U.S.-Canada Agreement on Softwood Lumber Trade 762

5. Free Trade Agreements 763a. Central America-Dominican Republic Free Trade

Agreement 764b. Colombia 764c. Panama 765d. Implementation of agreements with Bahrain

and Oman 765e. Other developments 766f. Special 301 program 766

Table of Contents xv

00-Cummins-Prelims.indd xv00-Cummins-Prelims.indd xv 10/22/07 11:22:10 PM10/22/07 11:22:10 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAW

E. COMMUNICATIONS 7691. Global Internet Freedom Task Force 7692. Amendments to the Constitution and Convention of the

International Telecommunication Union 770F. OTHER ISSUES 774

1. Foreign Investment: Committee on Foreign Investment in the United States 774

2. Intellectual Property 780a. Patent law treaty 780b. Agreement on international registration of industrial

designs 7863. U.S.-Uruguay Bilateral Investment Treaty 7904. Cuban Trademark Litigation 7965. U.S.-Indonesia Illegal Logging Initiative 801


Chapter 12 TERRITORIAL REGIMES AND RELATED ISSUES 805A. LAW OF THE SEA AND RELATED BOUNDARY ISSUES 805

1. Freedom of Navigation 805a. Oceans and the law of the sea 805b. Straits 806

(1) Malacca and Singapore 806(2) Torres Strait: Pilotage 810

c. Swedish territorial waters 812d. Canadian maritime Arctic claims 814

2. Draft Convention on Wreck Removal 8153. Maritime Labor Convention 2006 8214. Guidelines for the Fair Treatment of Seafarers in

the Event of a Maritime Accident 8255. Salvage at Sea 8286. Long-Range Identifi cation and Tracking of Ships 8357. Operational Procedures for Boarding and Inspecting

Certain Vessels 838B. OUTER SPACE 840

1. U.S. National Space Policy 8402. UN Committee on Peaceful Uses of Outer Space 847

a. Recent U.S. activities 847b. Registration of space objects 849

Cross Reference 851

xvi

00-Cummins-Prelims.indd xvi00-Cummins-Prelims.indd xvi 10/22/07 11:22:10 PM10/22/07 11:22:10 PM

Chapter 13 ENVIRONMENT AND OTHER TRANSNATIONAL SCIENTIFIC ISSUES 853A. ENVIRONMENT 853

1. Pollution and Related Issues 853a. Climate change 853b. Transboundary water pollution: Teck Cominco 855

(1) Litigation in U.S. courts 855(2) U.S.-Canada agreement 859

c. Comments on Report of the International Law Commission 861(1) Transboundary harm arising out of hazardous

activities 861(2) Shared natural resources 862

d. Basel Convention on hazardous waste 863e. Chemicals management declaration

and strategy 865f. Protection of stratospheric ozone 866g. Emissions controls 871

2. Protection of the Marine Environment and Marine Conservation 872a. Northwestern Hawaiian Islands Marine National

Monument 872b. Marine wildlife 875

(1) Pacifi c Salmon Treaty 875(2) Whaling 878(3) Sustainable fi sheries 880

(i) UN Fish Stocks Agreement Review Conference 880

(ii) Sustainable fi sheries resolution 880(4) Sea turtle conservation and shrimp

imports 882(5) Dolphin-safe tuna fi shing 883(6) Pollock resources in the Central Bering Sea 885

3. Forests: Debt-for-Nature Agreements 8864. Biological Diversity 888

B. MEDICAL AND HEALTH ISSUES 8891. Pandemic Infl uenza: Implementation of U.S. National

Strategy 8892. International Health Regulations 891

C. OTHER TRANSNATIONAL SCIENTIFIC ISSUES 893International Fusion Energy Organization 893

Cross Reference 895

Table of Contents xvii

00-Cummins-Prelims.indd xvii00-Cummins-Prelims.indd xvii 10/22/07 11:22:10 PM10/22/07 11:22:10 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWxviii

Chapter 14 EDUCATIONAL AND CULTURAL ISSUES 897A. CULTURAL PROPERTY: IMPORT RESTRICTIONS 897

1. Colombia 8972. Cyprus 8993. Bolivia 9014. Italy 901


Chapter 15 PRIVATE INTERNATIONAL LAW 903A. COMMERCIAL LAW 903

1. Carriage of Goods By Sea 903a. Carriage of Goods By Sea Convention 903

(1) Overview 903(2) U.S. submissions 913

(i) Seventeenth session of Working Group III 913

(ii) Eighteenth session of Working Group III 916

b. Carriage of Goods by Sea Act 9182. Commercial Law Initiatives Relevant to Development

Policies 9283. UNIDROIT Mobile Equipment Convention:

Draft Space Assets Protocol 9314. Electronic Commerce 9345. Securities Held Through Intermediaries 936

B. FAMILY LAW 9381. International Enforcement of Maintenance

Obligations 938 Draft Convention for the International

Recovery of Child Support and Other Forms of Family Maintenance 938

2. Reciprocating Countries for Enforcement of Family Support Obligations 942

C. INTERNATIONAL CIVIL LITIGATION 9441. Concurrent Proceedings in Foreign Courts 944

a. Comity-based abstentions 944(1) Mujica v. Occidental Petroleum Corp. 944(2) Sarei v. Rio Tinto 946

00-Cummins-Prelims.indd xviii00-Cummins-Prelims.indd xviii 10/22/07 11:22:10 PM10/22/07 11:22:10 PM

(3) Royal and Sun Alliance Insurance Company of Canada v. Century International 950

b. Anti-suit injunctions 953(1) E. & J. Gallo Winery v. Andina Licores, S.A. 953(2) Goss International Corp. v. Tokyo Kikai

Seisakusho, Ltd. 9582. Forum Non Conveniens 9633. Gathering Evidence Abroad 966

a. Lopes v. Lopes 966b. Judicial assistance requests by Microsoft Corporation 969

4. Service of Process Abroad: BP Products North America, Inc. v. Dagra 970


Chapter 16 SANCTIONS 975A. IMPOSITION OF SANCTIONS 975

1. Sudan 975a. Expansion of National Emergency 975b. Darfur Peace and Accountability Act of 2006 978

2. Belarus 9833. Syria 9844. Iran 9865. Palestinian Authority 990

a. Revisions to terrorism-related regulations 990b. Palestinian Anti-Terrorism Act of 2006 993

6. Cote d’Ivoire 9957. Democratic Republic of the Congo 9968. Cuba 998

B. OTHER ISSUES 9991. Terrorism 9992. Procedures for Listing and De-listing Designated

Individuals and Entities 10003. Challenges to Sanctions in U.S. Courts 1006

a. Denial of license to renew trademark by Cuban company 1006

b. Sanctions on travel to Iraq implementing UN Security Council resolution 1015


Table of Contents xix

00-Cummins-Prelims.indd xix00-Cummins-Prelims.indd xix 10/22/07 11:22:11 PM10/22/07 11:22:11 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWxx

Chapter 17 INTERNATIONAL CONFLICT RESOLUTION AND AVOIDANCE 1021A. PEACE PROCESS AND RELATED ISSUES 1021

1. Peaceful Settlement of Disputes: International Court of Justice 1021

2. Israel and the Palestinian Authority 1026a. President’s address to UN General Assembly 1026b. Palestinian Authority Legislative Council elections 1028c. Outbreak of renewed hostilities 1032

(1) Security Council 1032(2) UN General Assembly 1033

3. Israel and Lebanon 10344. Sudan: Darfur 10425. Ethiopia-Eritrea 10556. Placement of Burma on Security Council Agenda 10587. Confl ict Diamonds 1060

B. PEACEKEEPING AND RELATED ISSUES 10601. Lebanon 10602. Somalia 10613. Sudan 10644. Western Sahara 10645. Code of Conduct 1065


Chapter 18 USE OF FORCE, ARMS CONTROL AND DISARMAMENT, AND NONPROLIFERATION 1069A. USE OF FORCE 1069

1. U.S. Response to International Committee of the Red Cross Study on Customary International Humanitarian Law 1069

2. Convention on Conventional Weapons 1085a. Third Review Conference 1085b. Transmittal of CCW instruments for advice

and consent to ratifi cation 1094(1) CCW Amendment 1095(2) CCW Protocol V 1097

3. Additional Distinctive Emblem 11004. Detainees 1104

a. Overview 1104

00-Cummins-Prelims.indd xx00-Cummins-Prelims.indd xx 10/22/07 11:22:11 PM10/22/07 11:22:11 PM

b. U.S. submissions to the United Nations relating to detainees 1117(1) Response to Report of Rapporteurs on

Guantanamo 1117(2) U.S. Report to Committee Against Torture 1124

c. Military commissions and detainee treatment 1138(1) Supreme Court decision in Hamdan v.

Rumsfeld 1138(2) Subsequent executive and congressional actions 1155

(i) Department of Defense statement 1155(ii) President’s statement on transfer of certain

detainees to Guantanamo and need for military commission legislation 1156

(iii) Updated military guidance 1163(iv) Military Commissions Act 1168

d. Further litigation related to Guantanamo detainees 1177(1) Unlawful enemy combatants 1177

(i) Hamdan v. Rumsfeld 1177(ii) Boumediene v. United States 1179

(2) Individuals determined to be no longer enemy combatants 1184

e. Other detainee litigation 1194(1) Multinational Force-Iraq detainees:

Challenges to transfers to Iraqi government 1194(i) Omar v. Harvey 1195(ii) Mohammed v. Harvey 1205

(2) Freedom of Information Act Cases 1213(i) American Civil Liberties Union v.

Department of Defense 1213(ii) Associated Press v. Department of Defense 1218

5. Riot Control Agents 12236. Israel-Lebanon 12257. Israel-Palestinian Authority 12338. Iraq 1235

B. ARMS CONTROL AND DISARMAMENT 12381. Biological Weapons Convention 12382. Chemical Weapons Convention 1243

a. Extension of deadline for complete destruction of chemical weapons stocks 1243

b. National implementation measures 1246c. U.S. implementing regulations 1249

3. Strategic Arms Reduction Treaty 1251

Table of Contents xxi

00-Cummins-Prelims.indd xxi00-Cummins-Prelims.indd xxi 10/22/07 11:22:11 PM10/22/07 11:22:11 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWxxii

C. NONPROLIFERATION 12551. U.S. Compliance with International Law on Nuclear

Weapons 12552. Country-Specifi c Issues 1265

a. Democratic People’s Republic of Korea 1265(1) Launch of ballistic missiles 1265(2) Nuclear test 1268(3) U.S. sanctions 1271(4) Six-party talks 1271

b. Iran 1272(1) IAEA report to the Security Council 1272(2) Security Council and other international

actions 1274c. India: Implementation of 2005 India-U.S.

Joint Statement 1284(1) Identifying and separating civilian and military

nuclear facilities and programs in India 1284(2) U.S. legislation 1284

d. Russia 12873. Multilateral Efforts 1288

a. Proliferation Security Initiative 1288b. Fissile material cut-off treaty 1289c. Multilateral mechanism for reliable access to

nuclear fuel 1292d. Global Initiative to Combat Nuclear Terrorism 1293

4. Other U.S. Legislative and Regulatory Measures 1296a. Implementation of U.S. Additional Protocol 1296b. Weapons of mass destruction 1297c. Other sanctions 1298

(1) Iran Nonproliferation Act of 2000 actions 1298(2) Amendment of Foreign Assets Control

Regulations: North Korea 1299(3) Amendment of Export Administration

Regulations: Wassenaar Arrangement 1300Cross References 1301Table of Cases 1303Index 1319

00-Cummins-Prelims.indd xxii00-Cummins-Prelims.indd xxii 10/22/07 11:22:11 PM10/22/07 11:22:11 PM

xxiii

Preface

I welcome this latest edition of the Digest of United States Practice in International Law, for the year 2006. With the publication of this edition, the Digest returns to its regular schedule; henceforth, each edition will be published during the calendar year following the year to which it is devoted. Together with the edition for 2006, we are simultaneously releasing a Cumulative Index covering every edition of the Digest published for the years 1989 through 2006. It is our hope that scholars and practitioners alike will fi nd both this latest edition of the Digest and the Cumulative Index to be useful.

The Institute is very pleased to work with both the Offi ce of the Legal Adviser and with our co-publisher, the Oxford University Press, in making these volumes available for the use of the interna-tional legal community.

Don Wallace, Jr. Chairman

International Law Institute

00-Cummins-Prelims.indd xxiii00-Cummins-Prelims.indd xxiii 10/22/07 11:22:11 PM10/22/07 11:22:11 PM

00-Cummins-Prelims.indd xxiv00-Cummins-Prelims.indd xxiv 10/22/07 11:22:11 PM10/22/07 11:22:11 PM

xxv

Introduction

I am pleased to introduce the Digest of United States Practice in International Law for 2006. This year marked the fi fth anniver-sary of September 11, 2001, and the events of that date and its aftermath have had a lasting effect on the development of interna-tional law in the United States and globally.

During 2006 my colleagues and I continued to engage our inter-national partners in intensive discussions about the appropriate legal framework for the detention and treatment of international ter-rorists. The U.S. legal framework on these issues continued to evolve signifi cantly through the U.S. Supreme Court’s decision in the Hamdan case in June and the enactment of the Military Commissions Act in October. Armed confl icts during the year including those involving Israel, Lebanon, the Palestinian Authority, and Iraq raised other issues related to the law of war.

The United States welcomed the International Committee of the Red Cross’ study on the customary international law of the law of war and provided what we believe are constructive initial comments on certain aspects of methodology that raise questions about the study’s conclusions.

But these issues were, of course, only one facet of the offi ce’s practice during the year. The United States dispatched to Geneva two separate large, senior-level interagency delegations to present and discuss with the UN Committee Against Torture and the Human Rights Committee U.S. implementation of its obligations under the Convention Against Torture and the International Covenant on Civil and Political Rights. These presentations received wide domestic and international media attention and provided a forum for the

00-Cummins-Prelims.indd xxv00-Cummins-Prelims.indd xxv 10/22/07 11:22:11 PM10/22/07 11:22:11 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWxxvi

United States to explain the scope of its obligations under these important treaties. In 2006 we also continued to press for action to stop the genocide in Darfur and remained actively engaged in attempts to broker peaceful resolution of confl icts in Sudan, Ethiopia-Eritrea, and the Middle East. Our efforts to curb potential nuclear and missile proliferation in North Korea and Iran, includ-ing by working to facilitate adoption and robust implementation of targeted measures imposed by the UN Security Council and through the Six-Party process on denuclearization of the Korean peninsula, were only the highest visibility examples in the area of nonproliferation and arms control.

In 2006 the offi ce also focused signifi cant attention on cooper-ation in international criminal law enforcement and data sharing, commercial and family law, trade and investment, transboundary environmental issues, and maritime labor law. The United States continued its support for international and hybrid criminal tribu-nals and its efforts to minimize divisiveness over the International Criminal Court, and both brought and defended against actions in trade and investment arbitrations under WTO and NAFTA dis-pute resolution mechanisms.

The offi ce continued to play a leading role in the development of U.S. treaty law and practice. For example, it advised on the conclu-sion of over 200 international agreements by the United States dur-ing the year and worked with the Senate to obtain advice and consent to 14 treaties, including the U.S.-United Kingdom Extradition Treaty, the COE Convention on Cybercrime, the UN Convention Against Transnational Organized Crime and Two Protocols, and the UN Convention Against Corruption. We also obtained Senate approval of several agreements important to U.S. economic interests, such as the U.S.-Uruguay investment treaty and several bilateral tax treaties. The offi ce also set forth U.S. positions on issues such as the appropriate interpretation of treaties and responses to reservations to certain treaties.

In U.S. courts, the year saw further developments related to the applicability of the Alien Tort Statute, U.S. consular notifi cation obli-gations under the Vienna Convention on Consular Relations, and the scope of the Foreign Sovereign Immunities Act, including several Supreme Court decisions on consular notifi cation and immunities.

00-Cummins-Prelims.indd xxvi00-Cummins-Prelims.indd xxvi 10/22/07 11:22:12 PM10/22/07 11:22:12 PM

The Digest refl ects the continuing commitment of the Offi ce of the Legal Adviser to provide current information and documentation on a timely basis refl ecting U.S. views in various arenas of interna-tional law. It remains, in the truest sense, a collaborative undertak-ing involving the sustained effort of the attorneys and paralegals who work in the Offi ce of the Legal Adviser. For 2006 I want espe-cially to thank Patricia McDonough for drafting the terrorism sanctions section of Chapter 3, Alexandra Perina for the individual claims section of Chapter 8, David Huitema for Chapters 9 and 14, and Anna Conley, a former student intern, for the inter national civil litigation section of Chapter 15. Once again, a very special note of thanks goes to the Department’s Senior Reference Librarian, Legal, Joan Sherer, whose technical assistance is invaluable. Finally, I thank the editor of the Digest Sally Cummins without whom the volume would not exist.

We continue to value our rewarding collaboration with the International Law Institute. The Institute’s Director Professor Don Wallace and editor William Mays again have our sincere thanks for their superb support and guidance. We welcome Oxford University Press as co-publisher of the Digest by agreement with the International Law Institute. We look forward to a long and fruitful relationship with both of these publishers.

Comments and suggestions from readers are always welcome.

John B. Bellinger, IIIThe Legal Adviser

Department of State

Introduction xxvii

00-Cummins-Prelims.indd xxvii00-Cummins-Prelims.indd xxvii 10/22/07 11:22:12 PM10/22/07 11:22:12 PM

00-Cummins-Prelims.indd xxviii00-Cummins-Prelims.indd xxviii 10/22/07 11:22:12 PM10/22/07 11:22:12 PM

xxix

Note from the Editor

With the Digest of United States Practice in International Law for calendar year 2006, the new Digest series inaugurated in 2000 is complete for the period 1989-2006. Following some delays as we fi lled in the 1989-1999 period when publication was suspended, this volume’s release in December 2007 moves us back to our antic-ipated schedule of producing the annual volume within the follow-ing calendar year.

I want to thank my colleagues in the Offi ce of the Legal Adviser and those in other offi ces and departments in the U.S. Government who made this cooperative venture possible. The assistance of Anna Conley, a former student intern with the Offi ce who drafted the International Civil Litigation section of Chapter 15, and of Patricia McDonough (terrorism sanctions), Alexandra Perina (individual claims in Chapter 8 ) and David Huitema (Chapters 9 and 14) was key to its successful completion. As always, I thank our colleagues at the International Law Institute, Director Don Wallace, Jr., and editor William Mays, for their valuable support and guidance. We are delighted to be working now also with Oxford University Press under its co-publishing agreement with the Institute.

The 2006 volume continues the organization and general approach adopted with Digest 2000. In order to provide broad coverage of signifi cant developments as soon as possible after the end of the covered year, we rely in most cases on the text of relevant original source documents introduced by relatively brief explan-atory commentary to provide context. Our general practice is to limit entries in each annual Digest to material from the rele-vant year, leaving it to the reader to check for updates. One excep-tion to this practice is the inclusion of footnotes referencing

00-Cummins-Prelims.indd xxix00-Cummins-Prelims.indd xxix 10/22/07 11:22:12 PM10/22/07 11:22:12 PM

DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAWxxx

relevant U.S. Supreme Court decisions released in the following year before the book has gone to print; discussion of such deci-sions is deferred to the subsequent volume.

As in previous volumes, our goal is to assure that the full texts of documents excerpted in this volume are available to the reader to the extent possible. For many documents we have provided a specifi c internet cite in the text. We realize that internet citations are subject to change, but we have provided the best address avail-able at the time of publication. Where documents are not readily available elsewhere, we have placed them on the State Department website, at www.state.gov/s/l/c8183.htm.

Other documents are available from multiple public sources, both in hard copy and from various online services. The decision by the United Nations to make its Offi cial Document System avail-able to the public without charge provides a welcome source for UN-related documents of all types, available at http://documents.un.org/. The UN’s home page at www.un.org also remains a valu-able source for many UN documents.

The U.S. Government Printing Offi ce provides access to a number of publications, including the Federal Register, Congressional Record, U.S. Code, Code of Federal Regulations, and Weekly Compilation of Presidential Documents, as well as congressional documents and reports and statutes, at www.access.gpo.gov. Two particularly useful links for treaty issues are: Senate Treaty Documents, for the President’s transmittal of treaties to the Senate for advice and consent, with related materials, available at www.gpoaccess.gov/serialset/cdocuments/index.html, and Senate Executive Reports, providing among other things the Senate Committee on Foreign Relations reports of treaties to the Senate for vote on advice and consent, available at www.gpoaccess.gov/serialset/creports/index.html. In addition, the Library of Congress provides extensive legislative information at http://thomas.loc.gov.

The U.S. government’s offi cial web portal is www.fi rstgov.gov, with links to a wide range of government agencies and other sites; the State Department’s home page is www.state.gov.

While court opinions are most readily available through com-mercial online services and bound volumes, some materials are avail-able through links to individual federal court web sites provided at

00-Cummins-Prelims.indd xxx00-Cummins-Prelims.indd xxx 10/22/07 11:22:12 PM10/22/07 11:22:12 PM

www.uscourts.gov/links.html. The offi cial Supreme Court web site is maintained at www.supremecourtus.gov. The Offi ce of the Solicitor General makes its briefs fi led in the Supreme Court avail-able at www.usdoj.gov/osg.

Selections of material in this volume were made based on judg-ments as to the signifi cance of the issues, their possible relevance for future situations, and their likely interest to scholars and other academics, government lawyers, and private practitioners.

As always, suggestions from readers and users are welcomed.

Sally J. Cummins

Note from the Editor xxxi

00-Cummins-Prelims.indd xxxi00-Cummins-Prelims.indd xxxi 10/22/07 11:22:12 PM10/22/07 11:22:12 PM

00-Cummins-Prelims.indd xxxii00-Cummins-Prelims.indd xxxii 10/22/07 11:22:12 PM10/22/07 11:22:12 PM

1

CHAPTER 1

Nationality, Citizenship and Immigration

A. NATIONALITY AND CITIZENSHIP

1. Statelessness

In 2006 the Department of State responded to an inquiry concerning the fact that the United States has not become a party to either the 1954 Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness. Information on the U.S. position is set forth below.

As a general principle, the United States does not intend to become a party to either the 1954 Convention Relating to the Status of Stateless Persons or the 1961 Convention on the Reduction of Statelessness. United States law is generally consistent with the objectives of the two conventions; that is, the United States does not contribute to the problem of statelessness, nor does U.S. law treat stateless individuals differently from other aliens. As these are the two main issues that these conventions address, there is no compelling reason for the United States to become a party to either convention.

Moreover, there are specifi c obligations in these conventions that are inconsistent with U.S. law. For example, Article 7 of the 1961 Convention prohibits the renunciation of nationality where

01-Cummins-Chap01.indd 101-Cummins-Chap01.indd 1 10/22/07 11:24:39 PM10/22/07 11:24:39 PM

2 DI G E S T O F UN I T E D STAT E S PR A C T I C E I N IN T E R N AT I O N A L LAW

such renunciation would result in statelessness. This confl icts with U.S. law which has long recognized the right of expatriation as a natural and inherent right of all people. As such, under U.S. law, a citizen with the requisite intent can voluntarily renounce his citi-zenship without having already acquired the nationality of another state.

In addition, provisions such as Article 3 of the 1961 Convention that direct how a State grants its citizenship, e.g. by providing that all persons born in an airplane registered in the State or on a boat fl ying the State’s fl ag to have been born in the state’s territory, con-fl ict with existing U.S. nationality law. Similarly, Article 23 of the 1954 Convention provides that stateless persons have the same access to public relief and assistance as nationals. Although U.S. law as a general matter treats stateless persons the same as other aliens, aliens are not necessarily treated the same as U.S. nationals in the context of federal, state and local public assistance. Article 31 of the 1954 convention also limits the ability of states to expel stateless persons. This is inconsistent with U.S. immigration law which provides for the deportation of stateless aliens on the same grounds as those who are not stateless. While these examples are not exhaustive, they demonstrate some of the issues and inconsist-encies with U.S. law that the United States has identifi ed in the conventions.

2. Determination of Citizenship in In Vitro Case

In a letter of October 10, 2006, Edward A. Betancourt, Director, Offi ce of Policy Review and Interagency Liaison, Bureau of Consular Affairs, Department of State, responded to an inquiry from the Department of Homeland Security, U.S. Citizenship and Immigration Services, concerning determination of citi-zenship of a child born in Canada in an in vitro case involving a U.S. citizen sperm donor and an anonymous egg donor. Excerpts below from the letter explain Mr. Betancourt’s con-clusion that the Department of State “is of the view that the child in question does indeed have a claim to U.S. citizenship


Nationality, Citizenship and Immigration 3

pursuant to Section 309(a) of the Immigration and Nationality Act.”

* * * *

. . . We believe that the crucial point to keep in mind is the fact that citizenship is a federal matter, and governing federal law establishes that blood relationships are critical. Section 309(a)(1) emphasizes the need to demonstrate the existence of such a rela-tionship between an out-of-wedlock child and the alleged U.S. citizen father. It appears . . . that such a relationship is not at all in dispute in this case. In assigning parentage [to the birth mother’s husband] by way of operation of law, neither [state] nor [foreign law] can alter what is indeed a medical reality: that [the U.S. citizen sperm donor] is the biological father of the child.

In addition to blood relationship, section 309(a) requires, as you know, the establishment of a legal relationship between father and child. Legal relationship is typically established by one of three means: a court order of paternity, an affi davit of paternity, or legit-imation. In this case, [the U.S. citizen sperm donor] is recognized on the birth certifi cate as the child’s legal father, and he can readily establish the requisite legal nexus by executing under oath a written acknowledgment of paternity. A legal relationship can be forged without the need to legitimate the child in accordance with the law of the child’s residence or domicile. In fact, [state law] is not appli-cable to the fact situation with which we are dealing since the matter at hand involves in vitro fertilization and an anonymous egg donor, not artifi cial insemination of the biological mother.

If in addition to establishing the necessary biological and legal relationships with his child, . . . [the U.S. citizen sperm donor] pro-vides the written fi nancial undertaking and the evidence showing that he has the requisite Section 301(g) prior physical presence in the United States, we would recommend that the child be docu-mented as a U.S. citizen. Such an outcome is not only prescribed under governing federal law but is undoubtedly consistent with the intention of the parties concerned.

* * * *



B. PASSPORTS

1. Western Hemisphere Travel Initiative

On August 11, 2006, the Departments of State and Homeland Security (“DHS”) published a notice of proposed rulemaking by DHS, with request for public comment, for the air and sea phase of the Western Hemisphere Travel Initiative. 71 Fed. Reg. 46,155 (Aug. 11, 2006). The Western Hemisphere Travel Initiative (“WHTI”) was fi rst announced by the two depart-ments in April 2005 and an advance notice of proposed rule-making was published on September 1, 2005. 70 Fed. Reg. 52,037 (Sept. 1, 2005). See Digest 2005 at 1-5.

The Intelligence Reform and Terrorism Prevention Act of 2004 mandated that the Secretary of Homeland Security, in con-sultation with the Secretary of State, develop and implement a plan to require U.S. citizens and foreign nationals for whom the passport requirement had previously been waived to present a passport or other document deemed suffi cient to establish identity and nationality when entering the United States. Thus the WHTI would require U.S. citizens, Canadian citizens, citizens of the British Overseas Territory of Bermuda, and Mexican citi-zens, to have a passport or other designated secure document to enter or re-enter the United States. The Department of State and DHS proposed to implement the WHTI in two phases.

A media note released by the Department of State on August 11, 2006, described the main features of the proposed rulemaking for the initial stage as excerpted below. The full text of the media note is available at www.state.gov/r/pa/prs/ps/2006/70299.htm. As discussed following these excerpts, some changes were made in the fi nal rule.

* * * *

The proposed timeline and requirements would be as follows:

January 8, 2007 – Passports, Merchant Mariner Documents (MMD) or NEXUS Air cards would be required for all air



travel, and most commercial sea travel, from within the Western Hemisphere for citizens of the United States, Canada, Mexico, and Bermuda. This is a change from the previously scheduled date of January 1, in order to accom-modate holiday travel.

January 1, 2008 – The statutory deadline for all Western Hemisphere travel, including land border travel. Passports or other accepted documents determined to suffi ciently denote identity and citizenship will be required for anyone crossing at a land border, as well as air and sea.

* * * *

The passport (U.S. or foreign) will be the document of choice for entering or re-entering the United States through airports and seaports. In addition, the proposal published today lists a limited number of other documents that will be acceptable: the NEXUS air card for those enrolled in this international trusted traveler program; U.S. military ID for active-duty military members; and the Merchant Mariner Document (“z” card) for merchant mariners.

The proposed plan for the land-border implementation phase will be published separately in the Federal Register at a later date. In addition, a separate Proposed Rule will be published regarding the use of a U.S. passport card at land borders.

* * * *

The Federal Register provided background information and described certain exceptions to the new requirements in the proposed rule, as excerpted below (some footnotes omitted).

* * * *

A. Current Entry Requirements for United States Citizens Arriving by Air or Sea

In general, under federal law it is “unlawful for any citizen of the United States to depart from or enter * * * the United States unless



he bears a valid United States passport.”1 However, the statutory passport requirement has not been applied to United States citi-zens when departing from or entering into the United States from within the Western Hemisphere other than from Cuba.2 Currently, a United States citizen entering the United States from within the Western Hemisphere, other than from Cuba, is inspected at an air or sea port-of-entry by a DHS Bureau of Customs and Border Protection (CBP) offi cer. To lawfully enter the United States, a per-son need only satisfy the CBP offi cer of his or her United States citizenship.4 In addition to assessing the verbal declaration and examining the documentation the person submits, the CBP offi cer may ask for additional identifi cation and evidence of citizen-ship until the offi cer is satisfi ed that the person is a United States citizen.

As a result of this procedure, United States citizens arriving at air or sea ports-of-entry from within the Western Hemisphere cur-rently produce a variety of documents to establish their citizenship and right to enter the United States. A driver’s license issued by a state motor vehicle administration or other competent state gov-ernment authority is a common form of identity document now accepted by CBP at the border even though such documents do not denote citizenship. Citizenship documents currently accepted at ports-of-entry generally include birth certifi cates issued by a United States jurisdiction, Consular Reports of Birth Abroad, Certifi cates of Naturalization, and Certifi cates of Citizenship.

B. Current Entry Requirements for Nonimmigrant Aliens Arriving by Air or Sea

Currently, each nonimmigrant alien arriving in the United States must present to the CBP offi cer at the port-of-entry a valid unex-pired passport issued by his or her country of citizenship and, if

1 Section 215(b) of the Immigration and Nationality Act (INA), 8 U.S.C. 1185(b).

2 See 22 CFR 53.2(b), which waived the passport requirement pursu-ant to section 215(b) of the INA, 8 U.S.C. 1185(b).

* * * *4 8 CFR 235.1(b).



required, a valid unexpired visa issued by a United States embassy or consulate abroad.5 Nonimmigrant aliens entering the United States must also satisfy any other applicable entry requirements (e.g., United States Visitor and Immigrant Status Indicator Technology Program (US-VISIT)). For nonimmigrant aliens arriving in the United States, the only current general exceptions to the passport requirement apply to the admission of (1) citizens of Canada and Bermuda arriving from anywhere in the Western Hemisphere and (2) Mexican nationals with a Border Crossing Card (BCC) arriving from contiguous territory.

* * * *

C. Intelligence Reform and Terrorism Prevention Act of 2004

* * * *

United States citizens and nonimmigrant aliens, who currently are not required to have passports pursuant to sections 215(b) and 212(d)(4)(B) of the INA respectively, would be required to present a passport or other identity and citizenship document deemed suffi cient by the Secretary of Homeland Security when entering the United States from countries within the Western Hemisphere. The principal groups affected by this provision of IRTPA are United States citizens, Canadian citizens, citizens of Bermuda, and Mexican citizens holding BCC cards. These groups of individuals are currently exempt from the general passport requirement when entering the United States from within the Western Hemisphere.

* * * *

[Proposed 22 CFR] § 53.2 Exceptions.A U.S. citizen is not required to bear a valid U.S. passport to

enter or depart the United States:

* * * *

(e) When traveling as a member of the Armed Forces of the United States on active duty; or

5 Section 212(a)(7)(B)(i) of the INA, 8 U.S.C. 1182(a)(7)(B)(i).



(f) When traveling as a U.S. citizen seaman, carrying a Merchant Marine Document (MMD or Z-card) in con-junction with maritime business. The MMD is not suffi -cient to establish citizenship for purposes of issuance of a United States passport under 22 CFR Part 51; or

(g) When traveling as a participant in the NEXUS Air pro-gram with a valid NEXUS Air membership card. United States citizens who are traveling as participants in the NEXUS Air program, may present, in lieu of a passport, a valid NEXUS Air membership card when using a NEXUS Air kiosk prior to entering the United States. The NEXUS Air card is not suffi cient to establish citizenship for purposes of issuance of a U.S. passport under 22 CFR Part 51; or

(h) When the U.S. citizen bears another document, or combi-nation of documents, that the Secretary of Homeland Security has determined under Section 7209(b) of Public Law 108-458 (8 U.S.C. 1185 note) to be suffi cient to denote identity and citizenship; or

(i) When the U.S. citizen is employed directly or indirectly on the construction, operation, or maintenance of works under-taken in accordance with the treaty concluded on February 3, 1944, between the United States and Mexico regarding the functions of the International Boundary and Water Commission (IBWC), TS 994, 9 Bevans 1166, 59 Stat. 1219, or other related agreements provided that the U.S. citizen bears an offi cial identifi cation card issued by the IBWC; or

(j) When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Sec 2, the requirement with respect to the U.S. citizen because there is an unforeseen emergency; or

(k) When the Department of State waives, pursuant to EO 13323 of December 30, 2003, Sec 2, the requirement with respect to the U.S. citizen for humanitarian or national interest reasons.

* * * *

On November 24, 2006, the Departments of Homeland Security and State published a fi nal rule covering the passport



requirement for arrivals at air ports-of-entry only and modifying the effective date to January 23, 2007. 71 Fed. Reg. 68,412 (Nov. 24, 2006). As explained in the Federal Register Summary:

. . . [W]ith limited exceptions discussed below, beginning January 23, 2007, all United States citizens and nonimmi-grant aliens from Canada, Bermuda, and Mexico departing from or entering the United States from within the Western Hemisphere at air ports-of-entry will be required to present a valid passport. This fi nal rule differs from the Notice of Proposed Rulemaking (NPRM) published in the Federal Register on August 11, 2006, by fi nalizing new documenta-tion requirements only for travelers arriving in the United States by air. The portion of the NPRM that pro-posed changes in documentation requirements for travel-ers arriving by sea will not be fi nalized under this rule. Requirements for United States citizens and nonimmi-grant aliens from Canada, Bermuda, and Mexico departing from or entering the United States at land and sea ports-of-entry will be addressed in a separate, future rulemaking.

Excerpts follow from the Statutory and Regulatory History and Conclusion sections of the Federal Register publication (footnotes omitted). See also Department of State media note, November 22, 2006, available at www.state.gov/r/pa/prs/ps/2006/76752.htm.

* * * *

B. Statutory and Regulatory History

* * * *

On October 4, 2006, the President signed into law the Department of Homeland Security Appropriations Act of 2007 (DHS Appro-priations Act of 2007). [Pub. L. No. 109-295, 120 Stat. 1355] Section 546 of the DHS Appropriations Act of 2007 amended section 7209 of IRTPA by stressing the need for DHS and DOS to expeditiously implement the requirements by the earlier of



two dates, June 1, 2009, or three months after the Secretaries of Homeland Security and State certify that certain criteria have been met. The section requires “expeditious[]” action and states that requirements must be satisfi ed by the “earlier” of dates identifi ed. By using this language, the drafters expressed an intention for rapid action. Congress also expressed an interest in having the require-ments for land and sea implemented at the same time as part of the DHS Appropriations Act of 2007.

On October 17, 2006, to meet the documentary requirements of the Western Hemisphere Travel Initiative and to facilitate the frequent travel of persons living in border communities, the Department of State, in consultation with the Department of Homeland Security, proposed to develop a card-format passport, called the Passport Card, for international travel by United States citizens through land and sea ports of entry between the United States, Canada, Mexico, or the Caribbean and Bermuda.

II. Summary of Changes From NPRM and New Document Requirements

Under this fi nal rule, beginning January 23, 2007, United States citizens and nonimmigrant aliens from Canada, Bermuda, and Mexico entering the United States at air ports-of-entry will gener-ally be required to present a valid passport. . . . The only exceptions to this requirement would be for United States citizens who are members of the United States Armed Forces traveling on active duty; travelers who present a Merchant Mariner Document traveling in conjunction with maritime business; and travelers who present a NEXUS Air card used at a NEXUS Air kiosk.

* * * *

The new passport requirement does not apply to travelers arriving at land or sea ports-of-entry. Additionally, U.S. citizens and nationals who travel directly between parts of the United States,24 which includes Guam, Puerto Rico, the U.S. Virgin Islands, American Samoa, Swains Island, and the Commonwealth of the

24 As defi ned in section 215(c) of the INA (8 U.S.C. 1185(c)), the term “United States” includes all territory and waters, continental or insular, subject to the jurisdiction of the United States.



Northern Mariana Islands, without touching at a foreign port or place, are not required to present a valid passport.

2. Passport Card

As noted in the November 2006 fi nal rule discussed supra, on October 17, 2006, the Department of State, in consultation with the Department of Homeland Security, published a pro-posed rule to develop a card-format passport, with request for public comment. 71 Fed. Reg. 60,928 (Oct. 17, 2006). The card would be for international travel by U.S. citizens for use only through land and sea ports of entry between the United States, Canada, Mexico, the Caribbean, and Bermuda. A Department of State media note of the same date explained:

To facilitate the frequent travel of those living in U.S. border communities and those traveling on commercial maritime vessels, the Department of State has commit-ted to producing a passport card that incorporates cutting-edge technology. The technology incorporated in the proposed card was designed in coordination with DHS specifi cally to address the operational needs of land border-crossings. The proposed passport card would use long-range, or vicinity, radio frequency identifi cation (RFID) technology to link the card to a secure U.S. gov-ernment database containing biographical data and a photograph. The card itself will not contain any personal information, and DHS will implement protections to keep the database secure.

The media note is available at www.state.gov/r/pa/prs/ps/2006/74083.htm. Excerpts follow from the Supplementary Information section of the Federal Register publication (foot-notes omitted).

* * * *



. . . Passport Services has seen an increase in passport demand from a base level of seven million passports in 2003 to an expected total of 12-12.5 million in fi scal year 2006. Demand for passports is forecast to continue to increase to 16 million or more in FY-2007 and thereafter. However, the Department of State recognizes that there are circumstances where, due to reasons of both cost and ease of use, the traditional book-style U.S. passport may not be the optimal solution for international travelers along the northern and southern land borders of the U.S., or international sea travel between the U.S., Canada, Mexico, the Caribbean, and Bermuda. Therefore, the Department of State, in consultation with the DHS, is proposing an alternative format passport specifi cally designed for international land and sea travel between the U.S., Canada, Mexico, the Caribbean, and Bermuda.

The Card Format Passport

The term “passport” means any travel document issued by the competent authority of a sovereign nation showing the bearer’s identity and nationality that is deemed valid for the entry of the bearer into a foreign country. 22 U.S.C. 211(a) provides that the Secretary of State has the authority to issue passports for the U.S.

. . . Under this proposed rule, passport cards, like passport books, would be issued for a ten-year validity period for U.S. citi-zens sixteen years old and older, and for a fi ve-year validity period for U.S. citizens less than 16 years of age. The Department of State proposes to utilize the same application procedures and adjudica-tion standards for the passport book and card and to permit U.S. citizens to hold both a passport book and card simultaneously. In addition, if a passport applicant holds a valid passport book, the applicant may apply for a passport card as a “renewal” and pay the lower renewal fee rate.

. . . There is precedence for limited use passports. For example, [t]he Department of State issues passports only for one time use to allow the traveler to return to the U.S.

The passport card is designed specifi cally to address the needs and travel patterns of those who live in land border communities and frequently cross the border in their day-to-day activities. The technical architecture of the passport card is designed to



address the operational needs of pedestrian and vehicular traffi c in the land border environment, and international sea travel as discussed herein, but not the operational needs of inspection at air-ports. Moreover, the passport card is intended not only to enhance security efforts for international land and sea travel between the U.S., Canada, Mexico, the Caribbean, and Bermuda, but is also intended to assist DHS in expediting the movement of legitimate travel within the Western Hemisphere.

In particular, the land border presents complex operational challenges, in that a tremendous amount of traffi c must be proc-essed in a short amount of time. There are often several passengers in a vehicle, and multiple vehicles arriving at one time at each land border port-of-entry. Many of the people encountered crossing at the land border ports of entry are frequent crossers. However, CBP does not receive advance information on these land border travel-ers. For these reasons, the Department of State, in consultation with DHS, agreed to develop a technology-based solution.

The passport card is designed and authorized for international land and sea travel between the U.S., Canada, Mexico, the Caribbean, and Bermuda and will not be a globally interoperable document. Therefore, the ICAO standards and recommendations for globally interoperable passports would not apply to passport cards. The passport card will be a highly secure document with many features consistent with ICAO 9303 Part 3 defi nitions of TD-1 specifi cations. It will use a full facial image printed on the card as the biometric identifi er in conformity with ICAO stand-ards for ePassport images and utilize the international standard for Machine Readable Zone (MRZ) encryption.

* * * *

3. Electronic Passport

On August 14, 2006, a Department of State media note announced that “[t]o enhance border security and to facilitate travel, the Department of State began issuing Electronic Passports (e-passports) to the public today.” The full text of the media note, excerpted further below, is available at



www.state.gov/r/pa/prs/ps/2006/70433.htm. See also Digest 2005 at 6-8.

Consistent with globally interoperable specifi cations adopted by the International Civil Aviation Organization (ICAO), this next genera-tion of the U.S. passport includes biometric technology. A contact-less chip in the rear cover of the passport will contain the same data as that found on the biographic data page of the passport (name, date of birth, gender, place of birth, dates of passport issu-ance and expiration, passport number), and will also include a digital image of the bearer’s photograph.

The Department of State has employed a multi-layered approach to protect the privacy of the information and to mitigate the chances of the electronic data being skimmed (unauthorized reading) or eavesdropped (intercepting communication of the transmission of data between the chip and the reader by unin-tended recipients). Metallic anti-skimming material incorporated into the front cover and spine of the e-passport book prevents the chip from being skimmed, or read, when the book is fully closed; Basic Access Control (BAC) technology, which requires that the data page be read electronically to generate a key that unlocks the chip, will prevent skimming and eavesdropping; and a randomized unique identifi cation (RUID) feature will mitigate the risk that an e-passport holder could be tracked. To prevent alteration or modi-fi cation of the data on the chip, and to allow authorities to validate and authenticate the data, the information on the chip will include an electronic signature (PKI).

On October 28, 2006, the Department of Homeland Security announced that 24 of the 27 countries in the Visa Waiver Program (“VWP”) met the October 28 deadline in keeping with INA § 217(a)(3) and 217(c)(2)(B), 8 U.S.C. § 1187, to begin issuing electronic passports (“e-Passports”) to their citizens. Excerpts follow from a Department of State media note of that date. The full text of the media note is available at www.state.gov/r/pa/prs/ps/2006/75184.htm.

* * * *



VWP travelers who have valid machine-readable passports with a digital photograph issued before October 26, 2006 do not need an e-Passport until their current passport expires. Travelers can deter-mine whether their passports meet the requirements for VWP travel by checking the Department of State’s VWP information page on the consular website, http:// travel.state.gov, or by contacting their respective government.

Equipped with a contactless chip that stores the passport hold-er’s biographic information and digital photograph, an e-Passport securely identifi es the bearer, defends against identity theft, pro-tects privacy, and impedes individuals attempting to travel using fraudulent documents. These passports can be identifi ed by the international e-Passport symbol on their cover. The United States began issuing e-Passports to American citizens in August 2006.

The United States continues to work with the three countries not yet issuing e-Passports—Andorra, Brunei, and Liechtenstein—to ensure that they meet the requirement as soon as possible. Travelers from these countries will need to obtain a visa to enter the United States if they hold a passport issued on or after October 26, 2006, until e-Passports are available.

* * * *

4. Limitations on Passports

a. Child support arrearages

Effective October 1, 2006, the Department of State amended an existing regulation, promulgated under 42 U.S.C. § 652, to lower the amount of child support arrearages that can trigger denial of a passport. 71 Fed. Reg. 58,496 (Oct. 4, 2006). See also Digest 2002 at 13-15. As explained in the summary section of the fi nal rule:

This fi nal rule amends part 51 at Title 22 of the Code of Federal Regulations to change a ground of denying, revok-ing or cancelling a passport. The fi nal rule amends the existing regulation at section 51.70(a) in Title 22 of the Code of Federal Regulations which requires the Secretary



of State to deny a passport to a person who has been certifi ed by the Secretary of Health and Human Services to be in arrears of child support by an amount exceed-ing $5000 by changing it to $2500 in accordance with Section 7303 of Public Law 109-171, the Defi cit Reduction Act of 2005.

b. Alleged collaboration with U.S.-designated terrorist group in foreign country

In September 2006 a U.S. citizen was arrested in Sri Lanka for alleged involvement with the LTTE, a U.S.-designated terrorist group. The U.S. citizen was released on bail, and requested that the embassy issue a new passport, the current passport being held by Sri Lankan authorities. The Department of State provided guidance to the post as follows.

* * * *

Current regulations provide for denial of passport services to indi-viduals when the Department has been informed by competent authorities that an individual is, among other things, the subject of an outstanding U.S. federal arrest warrant or subject to a crimi-nal court order prohibiting departure from the U.S. (22 CFR 51.70(b)(4). There is no provision for denial of passport services on the basis of foreign criminal charges. 7 FAM 1371 addresses the issue of surrender of U.S. passports to the host government and passport issuance when the host government does and does not request notifi cation of issuance. Post has not requested return of the subject’s passport because it was instructed not to do so by [the U.S. citizen in question].

In the absence of a legal basis for passport denial, the Department and posts abroad have no authority to do so. . . . 7 FAM 1387.27/1387.3 provide that a U.S. passport may not be denied to a U.S. national based on a foreign criminal court order, warrant, or condition of probation or parole. Thus, lacking legal



grounds for denial of passport services, and assuming [the American citizen in question] wishes to travel immediately, post may . . . issue [the American citizen] a usual and customary one-year, lim-ited-validity passport . . . Prior to issuance, post should inform [the American citizen] that it is aware of the current disposition of [the American citizen’s] passport and, per 7 FAM 462(f), ask that [the American citizen] provide a new statement accurately por-traying the disposition of said passport. . . .

* * * *

. . . [I]t is the view of the Department that post should immedi-ately inform the appropriate [Sri Lankan] authorities upon issu-ance of the passport, and should inform [the American citizen] that it intends to do so.

* * * *

5. Lost and Stolen Passports

In 2006 the United States entered into a memorandum of understanding with New Zealand to provide for sharing information on lost and stolen passports. See Digest 2005 at 5-6 for discussion of a similar MOU entered into in 2005 with Australia. The MOUs, which are considered to be legally non-binding, record the intent of the parties to make avail-able to each other information from their lost and stolen passport databases. These instruments are part of a broader initiative to establish a Multilateral Framework for Regional Movement Alert (RMAL) System in APEC. The Multilateral Framework for RMAL was adopted by the APEC Business Mobility Group meeting in Hoi An, Vietnam in September 2006. The full text of the report, with attached Multila-teral Framework for Regional Movement Alert System (RMAL System), including the model MOU as Annex II, and related documents are available at www.apec.org/apec/documents_reports/informal_experts_group_business_mobility/2006.html.



C. IMMIGRATION AND VISAS

1. Bases for Ineligibility

a. Material support to terrorist organization: Required decision

In September 2006 the United States denied a visa applica-tion by Dr. Tariq Ramadan under § 212(a)(3)(B)(i)(I) of the Immigration and Nationality Act (“INA”) for engaging in terrorist activity. Section 212(a)(3)(B)(iv) defi nes “engage in terrorist activity” to mean, among other things, “to commit an act that the actor knows, or reasonably should know, affords material support, including a safe house, transporta-tion, communications, funds, transfer of funds or other mate-rial fi nancial benefi t, false documentation or identifi cation, weapons (including chemical, biological, or radiological weap-ons), explosives, or training . . . to a terrorist organization.” § 212(a)(3)(B)(iv)(VI). The denial followed a June 23, 2006, court order that the United States make a decision on Mr. Ramadan’s pending application.

In a daily Department of State press briefi ng on September 26, 2006, spokesman Sean McCormack explained:

. . . [Dr. Ramadan] was denied a visa under Section 212(a)(3)(B) of the Immigration and Nationality Act for providing material support to a terrorist organization. . . . Dr. Ramadan was originally issued an H-1B work visa to teach in the U.S. in 2004. The State Department revoked this visa in July 2004 to allow the U.S. Government to fol-low up on information that came to light after that H-1B visa was issued. He subsequently applied for a B1-B2 visa, business and tourism visa in the fall of 2005. New information . . . which led to the revocation of the H-1B visa was evaluated in light of the fall 2005 visa application and that ultimately lead to a fi nding of inadmissibility.

The full text of the press briefi ng is available at www.state.gov/r/pa/prs/dpb/2006/73167.htm.



Excerpts below from the June 2006 decision by the U.S. District Court for the Southern District of New York ordering the U.S. government to decide Ramadan’s visa application provide the court’s analysis including, among other things, the applicability of the doctrine of consular nonreviewability in the circumstances of the case (most footnotes and cita-tions to submissions in the case omitted). American Academy of Religion v. Chertoff, 463 F. Supp. 2d 400 (S.D.N.Y. 2006). The United States did not appeal the decision in the case. U.S. submissions to the district court, fi led March 31 and April 24, 2006, are available at www.state.gov/s/l/c8183.htm.

* * * *

On January 25, 2006, Plaintiffs American Academy of Religion (“AAR”) , American Association of University Professors (“AAUP”), PEN American Center (“PEN”), and Tariq Ramadan4 (collectively, “Plaintiffs”) fi led this lawsuit against Michael Chertoff and Condoleezza Rice, in their offi cial capacities as Secretary of the Department of Homeland Security (“DHS”) and Department of State, respectively, challenging the continued exclusion of Professor Tariq Ramadan (“Ramadan”) from the United States. Plaintiffs’ lawsuit has two parts: (1) a First Amendment challenge to the Government’s continued exclusion of Ramadan on the basis of his political views; and (2) a broader constitutional attack on Section 411(a)(1)(A)(iii) of the Patriot Act, 8 U.S.C. § 1182(a)(3)(B)(i)(VII), which permits DHS to exclude from the United States any alien that has used a “position of prominence within any country to endorse or espouse terrorist activity.”

Plaintiffs now move pursuant to Rule 65(a) of the Federal Rules of Civil Procedure for a preliminary injunction so that Ramadan

4 The Complaint asserts the rights of the organizational plaintiffs, not those of Tariq Ramadan. Ramadan is named as a plaintiff only “because he is symbolic of the problem,” Kleindienst v. Mandel, 408 U.S. 753, 762 (1972), and not because Plaintiffs assert that Ramadan, a Swiss citizen residing out-side of the United States, has any constitutional or statutory right to enter the United States.



may enter the United States to attend their annual conferences. Plaintiffs seek an injunction in four parts: (i) enjoining DHS from denying a visa to Ramadan on the basis of 8 U.S.C. § 1182(a)(3)(B)(i)(VII); (ii) enjoining DHS from denying a visa to Ramadan on the basis of speech that U.S. residents have a consti-tutional right to hear; (iii) requiring DHS to immediately adjudi-cate Ramadan’s pending visa application; and (iv) requiring DHS to immediately restore Ramadan’s eligibility to rely on the visa waiver program.

* * * *

Ramadan is a well-known scholar of the Muslim world. . . .

* * * *

Prior to August 2004, Ramadan visited the United States on numerous occasions to give lectures, attend conferences, and meet with other scholars. . . .

As a Swiss citizen, Ramadan did not need to apply for a tem-porary nonimmigrant visa to enter the United States to attend these lectures and conferences. In January 2004, however, Ramadan accepted a long-term tenured teaching position at University of Notre Dame, prompting the need for an H-1B visa. The University of Notre Dame submitted a visa petition on Ramadan’s behalf, which was approved by the U.S. Citizenship and Immigration Services on May 5, 2004.

. . . On July 28, 2004, . . . the U.S. Embassy in Bern, Switzerland informed Ramadan by telephone that his visa had been revoked. . . .

. . . [O]n December 13, 2004, Ramadan resigned his teaching post at University of Notre Dame. . . .

* * * *

On September 16, 2005, at the urgings of various organizations within the United States, Ramadan applied for a B visa, a nonim-migrant visa that would permit Ramadan to enter the United States to participate in various conferences. He submitted the applica-tion to the U.S. Embassy in Bern, Switzerland (the “Embassy”), as required by U.S. immigration law, and appended to the application invitations to a number of upcoming conferences. Ramadan appeared at the Embassy for an interview on December 20, 2005,



at which representatives from the Department of State and DHS asked him questions about his political views and associations. After the interview, Ramadan asked the interviewers whether his visa would be granted and, if so, when. He was told by a consular offi cer at the Embassy that he could expect that a decision “would take at least two days but no more than two years.” To date, the Government has not acted on Ramadan’s visa.

This delay is not typical. According to the U.S. Department of State website, the typical wait time (in calendar days) at the Bern Embassy for a nonimmigrant-visa interview appointment is 9 days. The typical wait time for a nonimmigrant visa to be processed is 2 days. While the website warns that the 2-day wait time does not include “the time for additional special clearance or administrative process,” it advises that “most special clearances are resolved within 30 days of application.”

The Government’s revocation of Ramadan’s H-1B visa has been criticized by numerous organizations, including Plaintiffs AAR and AAUP. Other groups, including the American Arab Anti-Discrimination Committee, the Jewish Council on Urban Affairs, and the Notre Dame Jewish Law Students Society, issued state-ments in support of admitting Ramadan into the United States; and major newspapers throughout the United States have com-mented on Ramadan’s visa saga. Despite this public criticism, the Government has neither granted Ramadan’s visa application, nor provided any explanation as to why it revoked Ramadan’s H-1B visa in July 2004 or why it is unable to render a decision on Ramadan’s pending B-visa application.

In opposing the instant motion for a preliminary injunction, the Government argues that Ramadan “has never had a visa revoked, a visa application denied, or any other adverse action taken against him” pursuant to 8 U.S.C. § 1182(a)(3)(B)(i)(VII). In fact, the Government claims that Ramadan’s visa application was never denied on any basis at all, because the July 2004 revoca-tion was only a “prudential” revocation, which is not a denial, but rather is a means of cancelling a visa while the Government carries on additional investigation. Thereafter, the Government continued to investigate Ramadan’s case from July through December 2004. This investigation was mooted, however, after Ramadan resigned



his post at the University of Notre Dame in December 2004, since an H-1B visa is premised upon employment in the United States, and Ramadan no longer had nor sought such employment. Thus, the Government contends that it never actually denied Ramadan a visa. As to the September 2005 application for a B visa, the Government contends that it has not d