E-Alert Case Updates

Native Born Son of a Possible Diplomat May Gain Citizenship

Abimbola v. Clinton, et al.
United States District Court for the District of Maryland, Civ. No.: ELJ-11-3677 (D. Md. Nov. 6, 2012)
by Kevin M. Cox, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Muisideen Adetikunbo Abimbola filed a “Petition for Mandamus and Declaratory Judgment” against the Secretary of State and other federal officials, seeking a declaratory judgment stating that he is a citizen of the United States or, in the alternative, a writ of mandamus directing the Defendants to issue a United States passport to him. According to his Complaint, Plaintiff was born in 1977 in Washington, D.C., to his father, Mutiu A. Abimbola, and his mother Toyin A. Abimbola. Claiming that he is a United States citizen by virtue of his birth in the United States, Plaintiff filed an application for a United States passport on October 19, 2010. Plaintiff filed his Complaint in the instant case over a year later, on December 21, 2011. As of that date, no decision had been issued as to plaintiff’s 2010 passport application.

Although a decision on Plaintiff’s 2010 passport application had not been rendered, Plaintiff had received correspondence from the State Department as early as 2003, asserting that he was not a United States citizen because, according to the State Department, at the time of his birth, his father, Mutiu Abimbola, was an accredited Nigerian Diplomat. Under the Fourteenth Amendment to the United States Constitution and 8 U.S.C. §1401(a), a person who is born in the United States “and subject to the jurisdiction thereof” is a citizen by birth. The Supreme Court has held even since 1898, however, that “children of foreign sovereigns or their ministers” are not citizens, even if born in the United States, because the children of foreign diplomats are not “subject to the jurisdiction” of the United States.

According to Plaintiff, the State Department inaccurately claimed that a person named “Mertice A. Abimbola,” who was an attached to the Embassy of Nigeria at the time of Plaintiff’s birth, was Plaintiff’s father. Because Mertice Abimbola was entitled to diplomatic immunity and privileges, the State Department determined that Plaintiff, Mertice’s supposed son, did not become a citizen by birth, despite his having been born in the United States. Plaintiff contended that this was a case of mistaken identity: his father’s name is Mutiu, not Mertice. Plaintiff also insisted that, although his father was an employee of the Nigerian Embassy, his father was not a diplomatic-level employee. Thus, Plaintiff reasoned that he was not subject to the long-standing exception to the principle of citizenship by birth applicable to the children of foreign diplomats. Based upon these facts, Plaintiff sought two (2) alternative remedies: (1) a declaratory judgment that he was a United States citizen; (2) a writ of mandamus compelling Defendants to issue a passport to him.

The State Department’s investigation ultimately revealed that in an interview with the Department of State in 2003, the man that Plaintiff identified as his father (i.e., Mutiu Abimbola) stated that he was in the United States on diplomatic status from 1976 to 1979 as the second secretary of defense, and that he did not have diplomatic privileges and immunities. Based on these facts, the State Department issued a final decision denying Plaintiff’s application for a passport on the basis that his father was an accredited foreign diplomat at the time of his birth, and as such, Plaintiff was not a United States citizen. On October 24, 2012, Plaintiff’s application was denied.

Pending before the court were two motions filed by the Defendants: First, was Defendant’s Motion to Dismiss on the basis of the lack of subject matter jurisdiction and failure to state a claim. Second, Defendant’s filed a Motion to Dismiss the Complaint as moot, based upon their conclusion that the man Plaintiff identified as his father was in fact in the United States on diplomatic status.

The Court sided with Plaintiff and held that, though, it could be argued that Plaintiff’s initial Complaint filed in December 2011 may have been premature, Plaintiff should refile his Complaint because a final denial has been issued. According to the Court, such an argument would elevate form over substance, especially in the context of this case. Thus, the Court held that none of the commendable purposes of the requirement of administrative exhaustion would be served by dismissing Plaintiff’s suit and requiring him to refile it anew tomorrow, in precisely the same posture. Therefore, the Court held that it possessed jurisdiction to adjudicate Plaintiff’s citizenship status under 8 U.S.C. § 1503(a), because Defendants had denied Plaintiff a right of privilege or citizenship. As such, Defendants’ motions were denied.