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December 8, 2010


IMMIGRATION AND POLICY: PASSPORT: "Definition of Passport A passport is a document that identifies a citizen, in effect rquesting foreign power to allow the bearer to enter a..."


Definition of Passport
A passport is a document that identifies a citizen, in effect rquesting foreign power to allow the bearer to enter and to pass freely and safely, recognizing the right of the bearer to the protection and good offices of American diplomatic and consular offices. A passport is evidence of permission from sovereign to its citizen to travel to foreign countries and to return to land of this allegiance, as well as request to foreign powers that such citizen be allowed to pass freely and safely.

Any travel document issued by competent authority showing the bearer's origin, identity, and nationality if any, which is valid for the entry of the bearer into a foreign country.

A visa is a machine-readable stamp in a your passport issued by an United States consul abroad. It authorizes you to apply for admission into the United States at a port of entry. Your visa specifies the type of immigration status you will hold, the date until which you may enter the United States, and the number of entries you may make before you must apply for a new entry visa. The length of validity of each visa type is determined by an agreement between your home country and the United States government and is not necessarily tied to the length of your staying.

The validity period of your enty visa does not determine the length of time you remain in the United States after you enter. Your length of stay is determined by the competion date on your Form I-94 Card expiration date, whichever is earlier.

Form I-94 Card is a record of your nonimmigrant status and permission to stay in the United States. It is a small white card, known as the I-94 card.

Reinstament of Revoked Passport
On January 21, 1987, P applied for a passport at the United States Embassy in Madrid. P's U.S. passport had been revoked in 1979 on the basis that his "activities abroa were causing or likely to casue serious damage to the national security or the foreign policy of the United States," 22 C.F.R. 51.70(b)(4) and 51.71(a) (2002). P, a former CIA employee, had engaged in a campaign to expose the identity of CIA agents, and was allegedly involved with Iranian captors of U.S. Embassy employees in Iran.  The passport revocation was upheld by the U.S. Supreme Court. Haig v. Agge, 453 U.S. 280 (1981).

On June 29, 1987, P received a letter from the Department of State denying his request for a passport on the basis of 22 C.F.R. 51.70(b)(5)  (2002), which permits the Secretary to deny a passport where "[t]he applicant has been the subject of a prior adverse action... under [22 C.F.R. 51.70 or 51.71 (2002)] and has not shown that a change in circumstances since the adverse action warrants issuance of a passport."

The decision took into account submissions made by P in April 1987 through counsel addressing the changed circumstances requirement and requesting a hearing if his application were denied. The decision also relied on a leter of June 30, 1987, from the Director of Central Intelligence, asserting that P had assisted various hostile intelligence services and had violated an injunction to observe a secrecy agreement with the CIA. The Director's letter set forth twelve specific charges against P.

On October 15, 1987, the State Departmnent held a hearing at which P appeared with his counsel. The hearing officer recommended affirmation of the passport denial. The recommnedation was accepted by the Assistant Secretary for Consular Affairs on February 10, 1988.

P appealed to the Department of State's Board of Appellate Review, which remanded the case because the administrative record was incomplete. The board noted its concern that P had requested and been denied  the opportunity to cross-examine the Director concerning the twelve charges included in his letter. Accordingly, in May 1989 the Department provided P with two declaration from the CIA, affirming that the information upon which its assertations were based was obtained in the normal course of CIA business, and that the sources were genuine and the translations accurate. The Department refused a request for a hearing , on the ground that it had fully met the requirements of the remand. The Department offered to entertain written interrogatoriies, but P submitted none.

On June 8, 1990, P filed suit in the U.S District Court for the District of Columbia against the Department of State seeking a passport and asserting that the procedures followed by the Department in denying his passport application violated the Constitution, federal statutes and regulations.

Both parties moved for summary judgement. The U.S. brief in the case emphasized that, "[u]nder applicable law, it is [P] already adjudicated as a threat to national security and not entitled to an American passport, who bears the burden of showing that those circumstances have changed." Defendant's Opposition to Plaintiff's Cross-Motion for Summary Judgement.

The brief stated that plaintiff had failed to meet his burden of proof, noting that P, in fact, had not even challenged the adverse material placed in the record by the Department. Addressing the constitutional issue of the right to travel, the U.S. brief stated:

   "Plaintiff has no constitutional right to travel on an American passport....Contrary to plaintiff's arguments ...there is no "proposed deprivation" of plaitiff's rights, only a question of whether an existing, and lawful deprivation should continue."

The brief pointed out that, under the Administrative Procedure Act. 5 U.S. C. 706, the Department of State's decision had to be upheld as long as it was not arbitrary and capricious, and was rationally based on the record.

As to P's procedural assertations, the U.S. government took the view that the Department's regulations were properly applied, and that P was not denied any constitutional right to cross-examination because he refused to submit written interrogatories when given the opportunity.

On October 30, 1990, the district court granted the U.S. motion for summary judgement and dismissed P's complaint.

Undoubtedly, the Court would normally have an obligation to test the government's passport procedures provided to ensure consitency with the Fifth Amendment's Due Process Clause. International travel, while not an unqualified right, is a liberty interest which the Fifth Amendment forbids the government from taking away from a citizen without procedural due process. Kent v. Dulles, 357 U.S. 116, 125 (1958).

Today the Department's passport regulatory authority can no longer be exercised by fiat, as it appears to have been in the past. The Department must have meaningul procedures adequate to resolve both passport issuance and passport revocation promptly and fairly.

22 CFR 51.70(b)(4) and 51.71(a) 2002
Haig v. Agee, 453 U.S. 280 (1981)
Kent v. Dulles, 357 U.S. 116, 125 (1958).
International Students and Scholars Office, Columbia University
Black's Law Dictionary, 6th Edition.