Sabra v. Pompeo

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MOHAMMED SABRA, as next friend
of Baby M,

Plaintiff,

v. No. 19-cv-2090 (EGS)
MICHAEL POMPEO, in his REDACTED
official capacity as Secretary
of the United States
Department of State

Defendant.

MEMORANDUM OPINION

I. Introduction

Plaintiff Mohammed B. Sabra (“Mr. Sabra”), a naturalized

U.S. citizen and a California resident, brings this action as

next friend of “Baby M” 1 against Defendant Michael Pompeo, in his

official capacity as the Secretary of the United States

Department of State (the “Secretary”). Mr. Sabra claims that his

wife, Ponn M. Sabra (“Mrs. Sabra”), gave birth to their

daughter, Baby M, in Gaza. Mr. Sabra contends that Baby M became

a U.S. citizen at birth because both of her parents are U.S.

citizens. Under 8 U.S.C. § 1401(c), a child born abroad acquires

U.S. citizenship if both parents are U.S. citizens and one of

1 The Court shall refer to M.M.S., the minor in this case, as
Baby M. See Fed. R. Civ. P. 5.2(a)(3); see also LCvR 5.4(f)(2).
them has had a residence in the United States before the child’s

birth. Congress granted the Secretary the authority to determine

the citizenship of a person outside of the United States

pursuant to 8 U.S.C. § 1104.

In June 2019, Mrs. Sabra applied in person at the U.S.

Embassy in Jerusalem (the “Embassy”) for a Consular Report of

Birth Abroad (“CRBA”) and U.S. passport as proof of Baby M’s

U.S. citizenship, citing a need for urgent medical treatment in

the United States. Mrs. Sabra did not provide any travel plans

for Baby M’s urgent medical care, and Baby M did not attend the

in-person interview because she was hospitalized. Because Mrs.

Sabra failed to provide written medical records to substantiate

Baby M’s medical condition, the Embassy did not excuse Baby M’s

personal appearance. Given Mrs. Sabra’s “advanced age,” the

Embassy requested documentary evidence establishing that Mrs.

Sabra was Baby M’s mother. Due to the indicia of fraud and

inconsistencies in the submissions, the Embassy extended the

deadline for the submission of additional evidence to establish

Baby M’s claim to U.S. citizenship. Litigation ensued. After

Baby M’s health became stable, Mr. and Mrs. Sabra declined the

Embassy’s offer to apply in person with Baby M for the CRBA and

U.S. passport. In October 2019, the Embassy denied Mrs. Sabra’s

applications.

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 Seeking declaratory, mandamus, and injunctive relief

(Counts I-III), Mr. Sabra claims that the supporting

documentation establishes Baby M’s entitlement to U.S.

citizenship. With respect to his request for a declaratory

judgment (Count I), Mr. Sabra contends that the Embassy’s

failure to issue the CRBA and U.S. passport constitutes a

violation of Baby M’s fundamental rights to citizenship and

travel under the Due Process Clause of the Fifth Amendment to

the United States Constitution. Mr. Sabra asserts an alternative

claim under the Religious Freedom Restoration Act (“RFRA”),

42 U.S.C. § 2000bb et seq., claiming that the Embassy’s request

for DNA testing and photographs showing Mrs. Sabra pregnant with

Baby M interferes with Mr. and Mrs. Sabra’s sincerely held

religious beliefs (Count IV). Construing Mr. Sabra’s challenge

to the Embassy’s actions as one under the Administrative

Procedures Act (“APA”), 5 U.S.C. § 701 et seq., the Secretary

argues that Mr. Sabra must seek relief pursuant to the statutory

scheme in 8 U.S.C. § 1503.

Pending before the Court are the parties’ cross-motions for

summary judgment. Upon careful consideration of the parties’

submissions, the applicable law, and the entire record herein,

the Court concludes that: (1) Mr. Sabra has failed to provide

satisfactory proof of birth, identity, and citizenship for the

issuance of Baby M’s CRBA and U.S. passport; and (2) the

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Secretary has failed to demonstrate that the Embassy’s request

for DNA testing and photographs showing Mrs. Sabra pregnant

furthers a compelling governmental interest by the least

restrictive means under RFRA. Therefore, the Court DENIES

Mr. Sabra’s Motion for Summary Judgment as to Counts I-III,

GRANTS the Secretary’s Motion for Summary Judgment as to Counts

I-III, and DENIES the Secretary’s Motion for Summary Judgment as

to Count IV.

II. Background

The Court assumes the parties’ familiarity with the factual

and procedural background in this case. The Court begins with

the statutory and regulatory framework and then summarizes the

relevant background. Unless otherwise indicated, the material

facts—drawn from the parties’ submissions—are not in dispute.

See, e.g., Def.’s Statement of Material Facts (“Def.’s SOMF”),

ECF No. 18-2 at 1-6; Pl.’s Counter-Statement of Material Facts

(“Pl.’s SOMF”), ECF No. 21-2 at 1-11; Pl.’s Reply to Def.’s

Counterstatement to Pl.’s SOMF, ECF No. 23-1 at 1-8. 2

A. Statutory and Regulatory Framework

The Immigration and Nationality Act of 1952 (“INA”) sets

forth the general rules for acquiring U.S. citizenship. Sessions

2 When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document.
4
v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017) (citing INA,

Pub. L. No. 82-414, § 301(a)(3), 66 Stat. 163, 235-36, codified

as amended, 8 U.S.C. § 1401). Section 1401(c), the subsection

relevant here, provides that a person “shall” be a national and

citizen of the United States at birth if the person is “born

outside of the United States and its outlying possessions of

parents both of whom are citizens of the United States and one

of whom has had a residence in the United States or one of its

outlying possessions, prior to the birth of such person.”

8 U.S.C. § 1401(c); see also 8 U.S.C. § 1101(a)(33) (defining

“residence” as “the place of general abode; the place of general

abode of a person means his principal, actual dwelling place in

fact, without regard to intent”).

1. Determinations of U.S. Citizenship

The Secretary is “charged with the administration and the

enforcement of . . . immigration and nationality laws relating

to . . . the determination of nationality of a person not in the

United States.” 8 U.S.C. § 1104; see also 22 C.F.R. § 50.1(d)

(defining “national” as “a citizen of the United States or a

noncitizen owing permanent allegiance to the United States”).

Two official documents provide proof of U.S. citizenship: (1) a

passport issued by the Secretary; and (2) a CRBA issued by the

State Department’s consular officer. 22 U.S.C. § 2705. And “the

Secretary may issue . . . CRBAs . . . to U.S. citizens born

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abroad ‘[u]pon application and the submission of satisfactory

proof of birth, identity and nationality.’” Chacoty v. Pompeo,

392 F. Supp. 3d 1, 3 (2019) (quoting 22 C.F.R. § 50.7(a)).

The Secretary has the authority “to cancel any [U.S.]

passport . . . if it appears that such document was illegally,

fraudulently, or erroneously obtained from, or was created

through illegality or fraud practiced upon, the Secretary.”

22 U.S.C. § 211a. “The issuance or cancelation of a CRBA . . .

‘affect[s] only the document and not the citizenship status of

the person.’” Chacoty, 392 F. Supp. 3d at 3 (quoting 8 U.S.C.

§ 1504(a)). “That is because CRBAs, like passports, do not

confer citizenship; rather, they merely provide proof of one’s

status as a citizen.” Id.

The State Department “shall” determine claims of U.S.

citizenship “when made by persons abroad on the basis of an

application for registration, for a passport, or for a [CRBA].”

22 C.F.R. § 50.2. Determinations of U.S. citizenship may be made

abroad by a consular officer or a designated nationality

examiner. Id. “A [CRBA] may only be issued by a consular

officer, who will review a designated nationality examiner’s

provisional approval of an application for such report and issue

the report if satisfied that the claim to nationality has been

established.” Id. An applicant for a CRBA “shall be required to

submit proof of the child’s birth, identity and citizenship

6
meeting the evidence requirements” for passports. 22 C.F.R.

§ 50.5 (referencing 22 C.F.R. ch. I, subch. F, pt. 51, subpt.

C).

2. The Documentary Evidence

Under the applicable regulations, the applicant bears the

burden of proof that he or she is a U.S. citizen, 22 C.F.R.

§ 51.40, and “[t]he applicant must provide documentary evidence

that he or she is a U.S. citizen or non-citizen national,” id.

§ 51.41. For a person born in the United States applying for a

passport for the first time, a birth certificate serves as

primary evidence, and “[t]he birth certificate must show the

full name of the applicant, the applicant’s place and date of

birth, the full name of the parent(s), and must be signed by the

official custodian of birth records, bear the seal of the

issuing office, and show a filing date within one year of the

date of birth.” Id. § 51.42(a). “Secondary evidence includes but

is not limited to hospital birth certificates, baptismal

certificates, medical and school records, certificates of

circumcision, other documentary evidence created shortly after

birth but generally not more than 5 years after birth, and/or

affidavits of persons having personal knowledge of the facts of

the birth.” Id. § 51.42(b).

For first-time passport applicants born outside the United

States, the person “must submit documentary evidence,” which

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includes a CRBA, certificate of naturalization, and certificate

of citizenship. Id. § 51.43(a)-(b). “An applicant without one of

these documents must produce supporting documents as required by

the [State] Department, showing acquisition of U.S. citizenship

under the relevant provisions of law.” Id. § 51.43(b)(2).

For CRBA applicants, “[p]roof of [the] child’s birth

usually consists of, but is not limited to,” the following

documents: (1) “an authentic copy of the record of the birth

filed with local authorities”; (2) “a baptismal certificate”;

(3) “a military hospital certificate of birth”; or (4) “an

affidavit of the doctor or the person attending the birth.” 22

C.F.R. § 50.5(a). Where there is no proof of the child’s birth,

“the person seeking to register the birth shall submit his

affidavit explaining why such proof is not available and setting

forth the facts relating to the birth.” Id. As for the proof of

the child’s citizenship, “[e]vidence of parent’s citizenship

and, if pertinent, evidence of parent’s physical presence in the

United States as required for transmittal of claim of

citizenship by the [INA] shall be submitted.” Id. § 50.5(b).

The State Department has the discretion to require

additional evidence in support of an application. E.g.,

22 C.F.R. § 51.45 (“The Department may require an applicant to

provide any evidence that it deems necessary to establish that

he or she is a U.S. citizen or non-citizen national, including

8
evidence in addition to the evidence specified in 22 CFR 51.42

through 51.44.”); 22 C.F.R. § 51.23(c) (“The Department may

require such additional evidence of identity as it deems

necessary.”).

3. Personal Appearance for First-Time Applicants

Before the issuance of a first-time passport, “the

application shall be duly verified by his oath before a person

authorized and empowered by the Secretary of State to administer

oaths.” 22 U.S.C. § 213; see also 22 U.S.C. § 212 (“No passport

shall be granted or issued to or verified for any other persons

than those owing allegiance, whether citizens or not, to the

United States.”). Generally, a minor under the age of sixteen

should appear with his or her parents or legal guardians when

applying for a CRBA and passport. See 22 C.F.R. § 51.28(a)(1)

(“Minors under 16 years of age applying for a passport must

appear in person, unless the personal appearance of the minor is

specifically excused by a senior passport authorizing officer,

pursuant to guidance issued by the Department.”); see also 7

Foreign Affairs Manual (“FAM”) § 1444.1(c) (explaining that

“[w]hen the infant or child is seriously ill and the subject of

a medical evacuation, a personal appearance may not be possible”

and the family may pursue the CRBA after the medical

evacuation).

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 Finally, the consular officer has the discretion to require

the personal appearance of the minor, especially “when the

consular officer suspects that the child is deceased or that the

child’s true identity is not being reported.” 7 FAM § 1444.1(b).

If the personal appearance is excused, the Secretary’s

designated official administers the oath to the parents or legal

guardians executing the application on behalf of the minor.

22 C.F.R. § 51.28(a)(1).

B. Factual and Procedural Background

Mr. Sabra, a naturalized U.S. citizen, was born in

Jerusalem, and he is domiciled in California. Pl.’s SOMF, ECF

No. 21-2 at 8; see also Def.’s Ex. 2, ECF No. 18-3 at 30. His

wife, Mrs. Sabra, is a U.S. citizen who was born in Connecticut.

Def.’s Ex. 2, ECF No. 18-3 at 29. Mr. and Mrs. Sabra have been

married since 1995, 3 see Def.’s Ex. 2, ECF No. 18-3 at 28, and

they had three daughters before Baby M’s birth, see P. Sabra

Decl., ECF No. 52-2 at 2 ¶ 6; see also Pl.’s SOMF, ECF No. 21-2

at 3.

3 The year in Mr. Sabra’s Statement of Material Facts is
inconsistent with the year on the official marriage license.
Compare Pl.’s SOMF, ECF No. 21-2 at 9 (stating that Mr. and Mrs.
Sabra have been married since 1998), with Def.’s Ex. 2, ECF No.
18-3 at 28 (showing that the State of Connecticut issued the
marriage license on October 3, 1995). Mrs. Sabra avers that she
has been married to Mr. Sabra since 1995. Decl. of Ponn Sabra
(“P. Sabra Decl.”), ECF No. 52-2 at 2 ¶ 5.
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 1. The Pregnancy and Baby M’s Birth

In September 2018, Mrs. Sabra moved from the United States

to Gaza with her three daughters because her two eldest

daughters attend college there. P. Sabra Decl., ECF No. 52-2 at

2 ¶ 8. After arriving in Gaza, Mrs. Sabra discovered that she

was pregnant with Baby M. Id. at 2 ¶ 9. Mrs. Sabra decided to

stay in Gaza to be close to Mr. Sabra’s family there. Id. at 3 ¶

12. At all relevant times, Mrs. Sabra’s age satisfied the World

Health Organization’s definition for women of child-bearing age,

which is 15 to 49 years old. Pl.’s SOMF, ECF No. 21-2 at 3

(“[Mrs.] Sabra was 46 years old at the time of [Baby M’s] birth

. . . .”). Due to Mrs. Sabra’s advanced age, however, the

pregnancy was deemed a risky one. E.g., P. Sabra Decl., ECF No.

52-2 at 3 ¶ 13; Translated Decl. of Samera Sabra (“S. Sabra

Decl.”), ECF No. 42-3 at 4 ¶ 8. Throughout the high-risk

pregnancy, Mrs. Sabra did not have any ultrasounds. P. Sabra

Decl., ECF No. 52-2 at 3 ¶ 13 (“I knew that, due to my age, I

would be considered at a higher risk for complications”; “[M]y

husband and I decided to trust our faith and not have

ultrasounds”).

In 2019, Baby M was born in Gaza. Id. at 3 ¶ 18 (“[Baby M]

was born in our home. My mother-in-law and my older daughters

11
were present at the time.”). 4 Mrs. Sabra’s neighbor, Dr.

[REDACTED](“Dr. [REDACTED]”), arrived at Ms. Sabra’s home after

Baby M’s birth, prescribed Mrs. Sabra post-natal antibiotics,

and assisted the family with transporting Baby M to a hospital.

Id. at 3 ¶¶ 17-19. According to the neighbor, Baby M suffered

from certain medical conditions, and she was treated at Al Shifa

hospital in Gaza. Decl. of [REDACTED] (“[REDACTED] Decl.”), ECF

No. 1-3 at 2 ¶ 5.

Moments before Baby M’s birth, there was “intense bombing

in Gaza City.” P. Sabra Decl., ECF No. 52-2 at 3 ¶ 16. The

conflict in Gaza, the West Bank, and Israel is well-documented.

According to the State Department, “[s]poradic mortar or rocket

fire and corresponding Israeli military responses may occur [in

Gaza] at any time.” Israel, The West Bank and Gaza Travel

Advisory, U.S. Dep’t of State (Dec. 28, 2018),

https://travel.state.gov/content/travel/en/traveladvisories/trav

eladvisories/israel-west-bank-and-gaza-travel-advisory.html

[hereinafter “Travel Advisory”]. 5 On its website, the State

4 Baby M’s date of birth is redacted in the filings to protect
her privacy. See Fed. R. Civ. P. 5.2(a)(2); see also LCvR
5.4(f)(3). The State Department contends that it lacks
sufficient information to verify Baby M’s date of birth. Def.’s
Opp’n, ECF No. 28 at 15; see also Pl.’s Reply to Def.’s
Counterstatement to Pl.’s SOMF, ECF No. 23-1 at 2.
5 The Court takes judicial notice of the information on the State
Department’s official website, which is a “source[] whose
accuracy cannot reasonably be questioned.” Fed. R. Evid.
201(b)(2); see also Humane Soc’y of United States v. Animal &
12
Department has cautioned U.S. citizens: “Do not travel to . . .

Gaza due to terrorism, civil unrest, and armed conflict.” Id.;

see also Decl. of Joshua D. Woda (“Woda Decl.”), ECF No. 18-3 at

1 ¶ 4 (explaining that the State Department has a “long-standing

Travel Advisory urging all U.S. citizens not to travel to

Gaza”).

“Since 2007, Gaza has been under the de facto control of

Hamas, a U.S. government-designated Foreign Terrorist

Organization (‘FTO’).” Woda Decl., ECF No. 18-3 at 1 ¶ 4. The

Embassy regularly assists U.S. citizens with leaving Gaza. Id.

Because U.S. employees are prohibited from entering Gaza, a U.S.

citizen living in Gaza must obtain a permit from Israeli

authorities to enter Israel where the Embassy is located. Id.

Embassy officials travel to Erez Crossing—the entry point

between the Gaza Strip and Israel—every six months to provide

certain services to U.S. citizens, such as “passport services

for newborns and other consular services.” Id.

2. The CRBA and Passport Application Process

On June 11, 2019, Mrs. Sabra contacted the Embassy and

requested an emergency appointment at Erez Crossing to obtain a

CRBA and U.S. passport for Baby M. Pl.’s SOMF, ECF No. 21-1 at

Plant Health Inspection Serv., 386 F. Supp. 3d 34, 40 n.2
(D.D.C. 2019) (taking judicial notice of documents and other
sources from an agency’s government website).
13
1. During her telephone conversation with an Embassy official,

Mrs. Sabra stated that Baby M needed the CRBA and passport for

medical treatment in the United States because Baby M had

serious health issues. Id. The Embassy official then scheduled

her appointment, advising Mrs. Sabra to bring certain

documentation in support of her applications. Id.

On June 12, 2019, Mrs. Sabra attended the scheduled

appointment with Joshua D. Woda, a Foreign Service Officer with

the State Department and Vice-Consul at the Embassy (“Vice-

Consul Woda”). Woda Decl., ECF No. 18-3 at 2 ¶ 8. Vice-Consul

Woda served in the Embassy’s American Citizen Services (“ACS”)

passport and citizenship unit, which issues passports and CRBAs.

Id. at 1 ¶ 1; see also 7 FAM 020 App. B (outlining “ACS

Responsibilities”). Vice-Consul Woda accepted Mrs. Sabra’s

applications and supporting documentation on behalf of Baby M.

See, e.g., Woda Decl., ECF No. 18-3 at 2 ¶ 8; Passport

Application, Def.’s Ex. 2, ECF No. 18-3 at 14-15; CRBA

Application, Def.’s Ex. 2 at 20-25.

Mrs. Sabra told Vice-Consul Woda that Baby M’s absence was

due to her hospitalization. Woda Decl., ECF No. 18-3 at 2 ¶ 9;

see also Pl.’s SOMF, ECF No. 21-2 at 2. Mrs. Sabra presented a

“Pediatric Admission Form,” which was primarily written in

English, as evidence of Baby M’s medical condition, Woda Suppl.

Decl., ECF No. 28-2 at 1 ¶¶ 4-6, but Vice-Consul Woda determined

14
that the document did not appear to be prepared “in the regular

course of [Baby M’s] medical treatment,” Woda Decl., ECF No. 18-

3 at 2 ¶ 9. Vice-Consul Woda observed that the form did not

indicate the hospital that generated the form, Woda Suppl.

Decl., ECF No. 28-2 at 1 ¶ 5, and Vice-Consul Woda concluded

that the form was “prepared specifically for presentation to the

Embassy” because it is “written entirely in English,” id. at 1 ¶

4. Vice-Consul Woda found that the document was “insufficient to

demonstrate emergency circumstances and waive the personal

appearance of the child” under the applicable regulations. Woda

Decl., ECF No. 18-3 at 2 ¶ 9.

3. Mrs. Sabra’s Initial Documentation

During the June 12, 2019 interview, Mrs. Sabra submitted

the following documents in support of the CRBA and passport

applications: (1) “a copy and translation of a birth certificate

issued on June 10, 2019, by the Palestinian Authority, Ministry

of Interior, General Administration of Civil Affairs,” Pl.’s

SOMF, ECF No. 21-2 at 2; (2) “copies of [Mrs.] Sabra and [Mr.]

Sabra’s U.S. passport biographical information pages,” id.;

(3) “a power of attorney document executed by Max Sabra on March

6, 2015,” id.; (4) “a 1995 Connecticut State Marriage

Certificate of [Mr.] Sabra and [Mrs. Sabra],” id.; and (5) a

“Pediatric Admission Form” dated June 9, 2019 and issued by the

State of Palestine, Ministry of Health, General Directory of

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Hospitals, Def.’s Ex. 6, ECF No. 28-2 at 3.

After reviewing the documents, Vice-Consul Woda advised

Mrs. Sabra that the “power of attorney document” failed to

comply with the requirement for the consent of both parents for

the issuance of a passport to a minor. Woda Decl., ECF No. 18-3

at 3 ¶ 13; see also Def.’s Ex. 2, ECF No. 18-3 at 18-19 (showing

the “Power of Attorney” document signed by “Max Sabra, A/K/A

Mohammed Sabra”). Although Vice-Consul Woda noted that the

Palestinian birth certificate appeared, on its face, to be

“genuine,” the document was issued “well after [Baby M’s]

birth.” Def.’s Ex. 1, ECF No. 18-3 at 8 (“ACS Activity Log”);

see also Birth Certificate, Def.’s Ex. 1, ECF No. 18-3 at 16-17.

Vice-Consul Woda could not verify “[Baby M’s] record of birth,”

which was signed by Dr. Bayan Saleh, Woda Decl., ECF No. 18-3 at

2 ¶ 8, because the Embassy has “no real method of verifying

documents issued in the Gaza Strip,” Def.’s Ex. 1, ECF No. 18-3

at 8.

According to Vice-Consul Woda, Mrs. Sabra claimed that Baby

M was born at a private clinic during the June 12, 2019

interview. Woda Decl., ECF No. 18-3 at 5 ¶ 21. Mrs. Sabra did

not provide any documentary evidence of post-natal care during

the June 12, 2019 interview. Id. at 3 ¶ 10; see also Pl.’s SOMF,

ECF No. 21-2 at 3. Neither did Mrs. Sabra provide information

about the Sabra family’s travel plans to the United States for

16
Baby M’s medical treatment. Woda Decl., ECF No. 18-3 at 3 ¶ 10.

Vice-Consul Woda avers that “[Mrs.] Sabra could not explain how

[Baby M] would be able to take a transatlantic flight to the

United States, which would first require overland travel to

Amman, Cairo, or Tel Aviv, when [Baby M] was not well enough to

appear for the interview at the Erez crossing, and appeared to

have no plan [for] the child’s travel or subsequent treatment.”

Id.

In the end, Vice-Consul Woda did not approve the

applications, but Vice-Consul Woda explained to Mrs. Sabra that

“additional evidence of her biological relationship with” Baby M

“could include submission of pre and post-natal medical records,

ultrasounds, and/or photos of [Mrs.] Sabra during her

pregnancy.” Id. at 3 ¶ 12. Vice-Consul Woda suggested DNA

testing to establish “a mother-child relationship.” Id. at 3 ¶

13; see also Pl.’s Ex. E, ECF No. 3 at 49 (“Proof of biological

relationship”; “we suggest DNA”). Mrs. Sabra, however, “objected

to DNA testing due to the anticipated processing time and stated

that the family could not wait in Gaza for the results.” Pl.’s

SOMF, ECF No. 21-2 at 4.

4. The Embassy’s Concerns with the Submissions

At some point, the Embassy received a discharge record

indicating that Baby M was born in a “private clinic.” E.g.,

Pl.’s SOMF, ECF No. 21-2 at 3; Pl.’s Ex. F, ECF No. 3 at 51-52

17
(“Place of Birth: Birthing Center”; “Name: Private Clinic”); E-

mail from Christina Jump, Esq., to ACS Unit, U.S. Embassy,

Jerusalem (June 28, 2019), Pl.’s Ex. I, ECF No. 3 at 66 (stating

that “the attached Exhibit A is the discharge record from the

clinic where [Baby M] was born, issued and stamped by the

Palestinian National Authority, which shows [Mrs.] Sabra and

[Mr.] Sabra to be the parents of [Baby M]”). The machine-printed

birth certificate contains white-out and a handwritten

alteration at box 5 “Place of birth.” Pl.’s SOMF, ECF No. 21-2

at 3; see also Pl.’s Ex. F, ECF No. 3 at 51. The words “private

clinic,” in Arabic, were written by hand over the whiteout. Woda

Decl., ECF No. 18-3 at 3 ¶ 10; see also P. Sabra Decl., ECF No.

52-2 at 4 ¶ 23 (“To the best of my knowledge, the one area that

was modified was to reflect that [Baby M] was not actually born

at Al Shifa but was born in a private setting, our home,

instead.”). Vice-Consul Woda determined that the document was

not a record of “discharge” from a hospital for Baby M or Mrs.

Sabra. Woda Decl., ECF No. 18-3 at 3 ¶ 10.

On June 21, 2019, Mr. Sabra sent an e-mail to the Embassy

with documents showing that Mrs. Sabra was prescribed pre-natal

vitamins and “documents purporting to show that [she] received

fertility treatment in the United States from February to May

2018.” Woda Decl., ECF No. 18-3 at 4 ¶ 15; see also Pl.’s SOMF,

ECF No. 21-2 at 5. Vice-Consul Woda determined that those

18
documents “were from at least 12 months before [Baby M’s] birth,

and thus had no bearing on whether [Mrs.] Sabra was actually

pregnant, and gave birth to [Baby M].” Woda Decl., ECF No. 18-3

at 4 ¶ 15. Given Mrs. Sabra’s claims that Baby M’s life was in

danger, the Embassy offered to assist the family with obtaining

a permit for Baby M in order for her to receive medical

treatment in Israel. Id. at 4 ¶ 16. The Sabra family declined

the Embassy’s offer. See Pl.’s SOMF, ECF No. 21-2 at 5-6.

On June 25, 2019, the Embassy’s ACS Unit received an e-mail

from Plaintiff’s counsel. Id. at 6. Plaintiff’s counsel

“asserted that DNA testing is against [Mrs.] Sabra’s sincerely

held religious beliefs as a practicing Muslim and that [Baby M]

could not withstand ‘either the trip to the Embassy for a DNA

sample or the thirty (30) day wait for results articulated by

U.S. Embassy officials in Jerusalem – without urgent medical

treatment which she cannot receive in Gaza, Baby M is not likely

to survive another thirty days.’” Id. (citation omitted). In

response, on June 28, 2019, the Embassy reiterated its offer to

assist the Sabra family to obtain permits from the Israeli

government for Baby M’s urgent medical treatment. Id. Again, the

Sabra family declined the Embassy’s offer. See id.

5. The Additional Documentation

On June 28, 2019, Plaintiff’s counsel submitted additional

documents to the Embassy, including a declaration, dated June

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25, 2019, from Dr. [REDACTED] at the Al Shifa hospital in the

Gaza Strip concerning Baby M’s medical condition. Id. To verify

Dr. [REDACTED]’s averments, Vice-Consul Woda called the hospital

on July 1, 2019. Woda Decl., ECF No. 18-3 at 5 ¶¶ 19-20. Vice-

Consul Woda used a translator for the telephone conversation

with Dr. [REDACTED] because he learned that Dr. [REDACTED] did

not speak English. Id. at 5 ¶ 20. The declaration was written in

English without an accompanying Arabic translation. [REDACTED]

Decl., ECF No. 1-3 at 2.

Dr. [REDACTED] confirmed to Vice-Consul Woda that he was

Mrs. Sabra’s neighbor, and that he received a telephone call

requesting his assistance at the Sabra family home because Mrs.

Sabra was in labor. Pl.’s SOMF, ECF No. 21-2 at 7. The doctor

stated that he arrived at Mrs. Sabra’s home after Baby M’s

birth. Id. The doctor further stated that he was not involved

with the medical care of Baby M, that he had not seen Baby M or

Mrs. Sabra since the day he was called to the home for Baby M’s

birth, and that he could not comment on Baby M’s condition. Id.

Plaintiff’s counsel, however, e-mailed the Embassy on July 8,

2019, stating, inter alia, that the Embassy officials had

“evidence” that included “Dr. [REDACTED]’s direct statement to

Embassy personnel that he personally delivered Baby [M].” E-mail

from Christina Jump, Esq., to ACS Unit, U.S. Embassy, Jerusalem

20
(July 8, 2019), Pl.’s Ex. J, ECF No. 3 at 75. 6 The doctor did not

personally deliver Baby M, and the doctor did not witness Baby

M’s birth. Pl.’s SOMF, ECF No. 21-2 at 8.

At some point, Mr. and Mrs. Sabra provided the following

documents to support their claim that Baby M is their child:

(1) Mr. Sabra’s Palestinian national identification card with

Baby M listed as his child, Pl.’s Ex. 2, ECF No. 23-2 at 5-8;

(2) a “Statement of Consent” form for the issuance of a U.S.

passport to a minor under the age of sixteen signed by Mr. Sabra

on June 26, 2019, Pl.’s Ex. K, ECF No. 3 at 86-88; (3) a

“Physical Exam” document, dated March 2, 2018, stating under the

[REDACTED] section that “[REDACTED],” Pl.’s Ex. 1, ECF No. 21-1

at 7; and (4) a photograph of [REDACTED], Pl.’s Ex. 4, ECF No.

23-2 at 12.

The Embassy permitted the Sabra family to submit additional

evidence in support of the pending applications. Pl.’s SOMF, ECF

No. 21-2 at 8. The Embassy advised Plaintiff’s counsel that the

CRBA and passport applications would remain open until September

13, 2019. Id. And the Embassy explained that the Sabra family

could submit a request for a decision on the pending

6 Plaintiff’s counsel stated that Dr. [REDACTED] “is in fact the
doctor who delivered Baby [M] when [Mrs.] Sabra went into labor
in [2019]; he therefore directly confirmed his personal
knowledge that she is the biological mother of Baby [M].” E-mail
from Christina Jump, Esq., to ACS Unit, U.S. Embassy, Jerusalem
(July 8, 2019), Pl.’s Ex. J, ECF No. 3 at 75.
21
applications before the September 2019 deadline. Id. Mr. and

Mrs. Sabra, however, did not request the adjudication of the

applications. Woda Decl., ECF No. 18-3 at 6 ¶ 25.

6. The Present Lawsuit

Before the Embassy rendered a final decision on the CRBA

and passport applications, Mr. Sabra, as next friend of Baby M,

filed the instant action in this District on July 15, 2019,

seeking declaratory, mandamus, and injunctive relief. See

Compl., ECF No. 1 at 2 ¶ 1; see also Sealed Compl., ECF No. 3 at

2 ¶ 1. Mr. Sabra asserts three claims for relief. See Compl.,

ECF No. 1 at 13-18 ¶¶ 50-77. Count I alleges that Mr. Sabra is

entitled to a “declaratory judgment that [Mr. Sabra] and

[Mrs. Sabra] have sufficiently proven the biological

relationship between themselves and Baby M,” id. at 13 ¶ 51, and

the Secretary’s “failure to provide [Baby M] with a CRBA and

U.S. passport constitutes a violation of her fundamental rights

to citizenship and travel under the Fifth Amendment to the U.S.

Constitution,” id. at 14 ¶ 57. Count II alleges that Mr. Sabra

is entitled to a writ of mandamus to compel the Secretary to

issue Baby M a CRBA and passport because “[Mr. Sabra] has more

than satisfied the requirement to provide proof of the parent-

child relationship by a preponderance of the evidence.” Id. at

15 ¶ 59. Count III alleges that Mr. Sabra is entitled to an

injunction to “prevent[] [the Secretary] from further delay of

22
Baby M’s application[s] pending submission to and the results of

a DNA test.” Id. at 18 ¶ 77. In the alternative, Mr. Sabra

asserts that the Secretary’s request for DNA testing and

photographs of Mrs. Sabra during the pregnancy “conflict[s] with

[Mr. Sabra’s] and his wife’s already articulated sincerely held

religious beliefs” in violation of RFRA (“Count IV”). Id. at 18

¶ 78.

On July 19, 2019, Chief Judge Beryl A. Howell granted

Mr. Sabra’s motion for leave to file under seal certain exhibits

attached to the complaint. Order, ECF No. 6 at 1-4. On the same

day, the case was randomly assigned to this Court. See generally

Docket for Civ. Action No. 19-2090. On August 1, 2019, Mr. Sabra

filed a motion for expedited consideration of the complaint

pursuant to Federal Rule of Civil Procedure 57, claiming that

“Baby M’s health remains at great risk” and “her need for

additional medical care remains urgent.” Pl.’s Emergency Mot. to

Expedite, ECF No. 12 at 4. The next day, on August 2, 2019, this

Court held a status conference. See Min. Entry of Aug. 2, 2019.

7. The Briefing

Before the status conference, Mr. Sabra agreed to withdraw

his emergency motion for expedited consideration, and the

parties agreed to an expedited briefing schedule on the merits

of the complaint. Joint Status Report, ECF No. 14 at 1 ¶ 4. The

Court adopted in part the parties proposed briefing schedule for

23
cross-motions for summary judgment. See, e.g., Min. Entry of

Aug. 2, 2019; Def.’s Mot. for Summ. J. (“Def.’s MSJ”), ECF No.

18; Pl.’s Mot. for Summ. J. (“Pl.’s MSJ”), ECF No. 15. After

those motions became ripe, the Court held a hearing on August

16, 2019. See Min. Entry of Aug. 16, 2019. In recognizing that a

“minor . . . who does not have a duly appointed representative

may sue by a next friend or by a guardian ad litem,” Fed. R.

Civ. P. 17(c)(2), this Court appointed Amy Jeffress, Esq., of

Arnold & Porter Kaye Scholer LLP as Baby M’s guardian ad litem,

Min. Order of Aug. 16, 2019. 7 The Court directed the Clerk of

Court to add Baby M as a petitioner in this case. Min. Order of

Aug. 16, 2019.

The Court continued the motions hearing until August 27,

2019, and the Court ordered supplemental briefing on the

applicability of 8 U.S.C. § 1503 and the origins of the

“biological requirement” in the State Department’s Foreign

Affairs Manual. Min. Order of Aug. 16, 2019. Mr. Sabra filed his

supplemental brief on August 21, 2019, see generally Pl.’s

Suppl. Mem., ECF No. 30, the government filed its supplemental

brief on August 26, 2019, see generally Def.’s Suppl. Br., ECF

No. 34, the guardian ad litem filed a memorandum on behalf of

Baby M on August 26, 2019, see generally Pet’r’s Mem., ECF No.

7 The Court expresses its appreciation to Ms. Jeffress and the
law firm of Arnold & Porter Kaye Scholer LLP.
24
36, and Mr. Sabra filed his reply brief on September 3, 2019,

see generally Pl.’s Reply, ECF No. 42.

8. Baby M’s Health

Between August 16 and August 27, 2019, the Court directed

Mr. Sabra to provide updates on Baby M’s medical condition. See

Docket for Civ. Action No. 19-2090. Mr. Sabra, through counsel,

acknowledged the State Department’s offer to assist his family

with entering Israel for Baby M’s urgent medical treatment. Mot.

Hr’g Rough Tr. (Aug. 16, 2019) at 11. The guardian ad litem

“engaged with counsel to pursue alternative avenues to obtain

medical treatment for Baby M as expeditiously as possible.”

Pet’r’s Mem., ECF No. 36 at 4. Over the course of the

litigation, Baby M’s health improved based on Plaintiff’s

counsel’s representations to the Court. Mr. Sabra, however, did

not provide the Court with written medical records to confirm

Baby M’s medical condition. See Joint Status Report, ECF No. 32

at 1.

On August 16, 2019, the Secretary advised the Court that

the Sabra family may apply to the United States Customs and

Immigration Services (“USCIS”), a non-party in this case, for

Baby M’s humanitarian (medical) parole for entry into the United

States. See Min. Order of Aug. 16, 2019; see also Def.’s Notice

Regarding Parole, ECF No. 31 at 1. On August 22, 2019, the

Secretary confirmed that it would not deem the parole

25
application as Mr. Sabra’s admission that “Baby M is not a U.S.

citizen, an abandonment of any claim to U.S. citizenship

asserted by Baby M to date, or a waiver of any right Baby M may

have to assert a claim of U.S. citizenship in the future.”

Def.’s Notice Regarding Parole, ECF No. 31 at 1. On August 23,

2019, the Secretary informed the Court that USCIS did not

receive an application for Baby M’s humanitarian (medical)

parole, but USCIS would expedite any application with notice.

Joint Status Report, ECF No. 32 at 3-4.

Based on Mr. Sabra’s representations that any written

medical “records [for Baby M] are sparse, if in existence at

all,” id. at 1, the Secretary contacted a physician practicing

in Gaza who had previously contracted with the Embassy to

perform medical examinations for visa applications, Def.’s

Status Report, ECF No. 40 at 1. The Secretary confirmed that the

physician was willing to perform a physical examination of Baby

M and author a report with the results of the examination. Id.

The Secretary filed under seal the name and contact information

of the physician. Def.’s Sealed Notice, ECF No. 45 at 1. At the

September 4, 2019 status conference, Plaintiff’s counsel did not

consent to the independent medical evaluation of Baby M, and

Plaintiff’s counsel confirmed that Baby M’s health was stable.

26
 9. The Final Decision

At the Court’s direction, the Embassy extended the deadline

from September 13, 2019 to October 15, 2019, for the submission

of additional evidence in support of the CRBA and passport

applications. Joint Status Report, ECF No. 51 at 2. Given Baby

M’s stable condition, the Embassy offered Mr. and Mrs. Sabra a

November 2019 appointment at Erez Crossing in order for the

family to present Baby M to the consular officer. Id. at 1. The

Sabra family declined the offer, and the family suggested a

visual inspection via video link rather than Baby M’s personal

appearance at Erez Crossing. Id. at 2. In response, the Embassy

decided to adjudicate the CRBA and passport applications after

considering the submissions. Id. On October 22, 2019, the

Embassy sent Mr. and Mrs. Sabra a letter, informing them that:

“[t]he documentation and evidence submitted in support of the

applications does not sufficiently establish [Baby M’s] claim to

U.S. citizenship.” Letter from Elise B. Greene, ACS, U.S.

Embassy Jerusalem, to Ponn Sabra & Mohammed Sabra (Oct. 22,

2019), Ex. A, ECF No. 55-1 at 1 [hereinafter “Final Decision”].

The briefing is now complete, and the motions are ripe and

ready for the Court’s adjudication.

III. Legal Standard

A court shall grant summary judgment when “the movant shows

that there is no genuine dispute as to any material fact and the

27
movant is entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). A “material” fact is one capable of affecting the

substantive outcome of the litigation. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A material fact is

“genuine” if “the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Id. If material facts

are genuinely in dispute, or undisputed facts are susceptible to

divergent yet justifiable inferences, summary judgment is

inappropriate. Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir.

2009).

“The rule governing cross-motions for summary judgment . .

. is that neither party waives the right to a full trial on the

merits by filing its own motion; each side concedes that no

material facts are at issue only for the purposes of its own

motion.” Sherwood v. Wash. Post, 871 F.2d 1144, 1147 n.4 (D.C.

Cir. 1989) (citation omitted). Summary judgment is appropriate

if the “pleadings, depositions, answers to interrogatories,

admissions on file, and affidavits show that there is no genuine

issue of material fact.” Carter v. Greenspan, 304 F. Supp. 2d

13, 20 (D.D.C. 2004). “[C]onclusory allegations and

unsubstantiated speculation, whether in the form of a

plaintiff’s own testimony or other evidence submitted by a

plaintiff to oppose a summary judgment motion, do not create

genuine issues of material fact.” Mokhtar v. Kerry, 83 F. Supp.

28
3d 49, 61 (D.D.C. 2015) (citation and internal quotation marks

omitted), aff’d, No. 15-5137, 2015 WL 9309960 (D.C. Cir. Dec. 4,

2015).

IV. Analysis

Mr. Sabra moves for summary judgment on Counts I through

III, arguing that a declaratory judgment is proper because Baby

M is a U.S. citizen and the documentation provided to the

Embassy establishes, by a preponderance of the evidence, that

Baby M has a biological relationship with Mr. and Mrs. Sabra.

Pl.’s Mem. in Supp. of Pl.’s MSJ (“Pl.’s Mem.”), ECF No. 15-2 at

3, 8. With respect to Count I, Mr. Sabra contends that the

Secretary’s failure to recognize Baby M’s right to citizenship

violates the due process guarantee under the Fifth Amendment.

Id. at 5. As to Count II, Mr. Sabra argues that a writ of

mandamus is appropriate to compel the Embassy to issue the CRBA

and passport to Baby M. Id. at 10. With respect to Count III,

Mr. Sabra urges this Court to enjoin the Secretary from further

delay in processing Baby M’s applications. Id. at 3-4, 9.

The Secretary moves for summary judgment, arguing that the

CRBA and passport applications for Baby M are based on a

“suspicion of fraud,” and that the Embassy reasonably determined

that Mr. Sabra must satisfy the State Department’s biological

relationship requirement for Baby M’s entitlement to the CRBA

and passport. Def.’s MSJ, ECF No. 18 at 1. The Secretary argues

29
that summary judgment as to Counts I through IV is appropriate

because Mr. Sabra fails to establish a valid claim under the

APA, the writ of mandamus statute, or RFRA; thus, there is no

basis for the Court to exercise jurisdiction to grant injunctive

or declaratory relief. Def.’s Mem. of Law in Supp. of Def.’s MSJ

(“Def.’s Mem.”), ECF No. 18-1 at 31-32. The Secretary further

contends that Mr. Sabra fails to comply with the applicable

statutes and regulations that require proof of Baby M’s birth,

identity, and citizenship. Def.’s Opp’n, ECF No. 28 at 9.

For the reasons explained below, the Court agrees with the

Secretary that Mr. Sabra has failed to provide satisfactory

proof of Baby M’s birth, identity, and citizenship to establish

her entitlement to a CRBA and passport under the applicable

statutes and regulations, finding no due process violations. The

Court disagrees with the State Department’s interpretation that

the INA requires proof of a biological relationship in this

case. The Court disagrees with the Secretary that Mr. Sabra’s

RFRA claim fails because the evidence shows that the Embassy’s

request for DNA testing and photographs depicting Mrs. Sabra as

pregnant imposed a substantial burden on the religious exercise

of Mr. and Mrs. Sabra.

The Court first addresses the three jurisdictional issues:

(1) whether Mr. Sabra has standing to pursue his claims;

(2) whether this Court has subject-matter jurisdiction; and

30
(3) whether the doctrine of sovereign immunity bars Mr. Sabra’s

claims. The Court then turns to the parties’ arguments,

concluding that: (1) the Secretary is entitled to summary

judgment as a matter of law as to Counts I through III; and

(2) the Secretary is not entitled to summary judgment as to

Count IV because there is a genuine dispute regarding the issue

of whether the Embassy’s request for the DNA testing and Mrs.

Sabra’s pregnancy photographs served a compelling interest by

the least restrictive means under RFRA.

A. Subject-Matter Jurisdiction

Before reaching the merits, the Court must confirm its own

subject-matter jurisdiction. Moms Against Mercury v. Food & Drug

Admin., 483 F.3d 824, 826 (D.C. Cir. 2007) (citing Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 94–95 (1998)). Lack of

standing is a defect in subject-matter jurisdiction. Haase v.

Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “Where both

standing and subject matter jurisdiction are at issue, however,

a court may inquire into either and, finding it lacking, dismiss

the matter without reaching the other.” Moms Against Mercury,

483 F.3d at 826.

Mr. Sabra invokes three bases for jurisdiction:

(1) 28 U.S.C. § 1331 (federal question); (2) 28 U.S.C. §§ 2201–

2202 (declaratory judgment); and (3) 28 U.S.C. § 1361

(mandamus). Compl., ECF No. 1 at 3 ¶ 7, 4 ¶ 8. The Secretary

31
argues that this Court lacks subject-matter jurisdiction because

Mr. Sabra lacks standing, and the Court has no mandamus

jurisdiction to order the Secretary to perform a discretionary

duty. Def.’s Mem., ECF No. 18-1 at 23-27, 30-31. The Court will

address each argument in turn.

1. Mr. Sabra Has Standing

The Court begins with the standing analysis. “Article III

of the Constitution limits the jurisdiction of the federal

courts to ‘Cases’ and ‘Controversies.’” Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 157 (2014) (quoting U.S. Const., art.

III, § 2). “‘One element of the case-or-controversy requirement’

is that plaintiffs ‘must establish that they have standing to

sue.’” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 408 (2013)

(quoting Raines v. Byrd, 521 U.S. 811, 818 (1997)). To establish

standing, “a plaintiff must show (1) an ‘injury in fact,’ (2) a

sufficient ‘causal connection between the injury and the conduct

complained of,’ and (3) a ‘likel[ihood]’ that the injury ‘will

be redressed by a favorable decision.’” Susan B. Anthony List,

573 U.S. at 158 (quoting Lujan v. Defs. of Wildlife, 504 U.S.

555, 560-61 (1992)); see also Newdow v. Roberts, 603 F.3d 1002,

1010 (D.C. Cir. 2010) (“The absence of any one of these three

elements defeats standing.”). The plaintiff bears the burden of

demonstrating constitutional standing. Steel Co., 523 U.S. at

104.

32
 Here, as Baby M’s CRBA and passport applications were

pending, the Secretary moved for summary judgment on standing

and ripeness grounds. See Def.’s Mem., ECF No. 18-1 at 23-27.

Given the status of the applications, the Secretary argued that

this Court lacks subject-matter jurisdiction to hear Mr. Sabra’s

claims because the Embassy did not issue a decision on the CRBA

and passport applications to constitute “final agency action”

under the APA. Id. at 23. The Secretary only challenged the

first prong of Article III standing, arguing that Mr. Sabra

failed to demonstrate that he or Baby M suffered any harm or

injury from the Embassy’s request for additional information in

support of the CRBA and passport applications. Id. at 24-25. In

the Secretary’s view, Mr. Sabra lacked standing, and his claims

based on the Embassy’s action (or inaction) were not ripe for

adjudication. Id. at 23-27. For the reasons explained below, the

Secretary’s arguments, however, are moot.

It is undisputed that the Embassy had not issued a decision

on the pending applications when the parties filed the cross-

motions for summary judgment in August 2019. See, e.g., Def.’s

SOMF, ECF No. 18-2 at 6; Pl.’s SOMF, ECF No. 21-2 at 8. It is

uncontested that the Embassy extended the deadline for the

submission of additional evidence in support of the pending

applications to September 2019. See Pl.’s SOMF, ECF No. 21-2 at

8; see also E-mail from ACS Unit, U.S. Embassy, Jerusalem, to

33
Christina Jump, Esq. (June 28, 2019), Pl.’s Ex. H, ECF No. 1-10

at 2 (stating that “the application will remain pending until

September 13, 2019”). In October 2019, the Embassy issued a

final decision on the applications. Final Decision, ECF No. 55-1

at 2. The Court therefore finds that the Secretary’s standing

and ripeness arguments are moot.

Having found that the Embassy’s final decision mooted the

Secretary’s standing and ripeness arguments, this Court must

assure itself that standing exists in this case before

proceeding to the merits. Summers v. Earth Island Inst., 555

U.S. 488, 499 (2009) (“[I]t is well established that the court

has an independent obligation to assure that standing exists,

regardless of whether it is challenged by any of the parties.”).

For purposes of the standing inquiry, this Court must assume

that Mr. Sabra would succeed on the merits of his claims.

Schnitzler v. United States, 761 F.3d 33, 40 (D.C. Cir. 2014).

(“[I]n reviewing the standing question, the court must . . .

assume that on the merits the plaintiffs would be successful in

their claims.”).

Assuming Mr. Sabra’s success on the merits, Mr. Sabra

easily satisfies Article III standing’s first and second prongs—

injury-in-fact and causation—because Mr. Sabra challenges the

Embassy’s denial of the CRBA and passport applications, and

Mr. Sabra alleges that he, along with Baby M, suffered a

34
particularized injury that is fairly traceable to the Embassy’s

challenged action. See Lujan, 504 U.S. at 560-61. The issue of

whether Mr. Sabra meets the redressability prong is less

straightforward.

“Redressability examines whether the relief sought,

assuming that the court chooses to grant it, will likely

alleviate the particularized injury alleged by the plaintiff.”

Orangeburg v. FERC, 862 F.3d 1071, 1083 (D.C. Cir. 2017)

(citation omitted). Mr. Sabra seeks two forms of relief to

redress his injury: (1) a declaratory judgment that Baby M is

immediately eligible for U.S. citizenship and that Mr. and Mrs.

Sabra have provided the Embassy with sufficient proof of the

biological relationship between them and Baby M, Compl., ECF No.

1 at 13 ¶¶ 51-52; and (2) a writ of mandamus compelling the

Secretary to issue the CRBA and passport, id. at 16 ¶¶ 67-69. 8

8 Mr. Sabra seeks an injunction prohibiting the Embassy from
delaying Baby M’s CRBA and passport applications until the
submission of DNA testing results. Compl., ECF No. 1 at 18 ¶ 77.
The Embassy’s October 22, 2019 final decision denying the
applications is an “intervening factual event” that renders as
moot his request for injunctive relief. Longwood Vill. Rest.,
Ltd. v. Ashcroft, 157 F. Supp. 2d 61, 66 (D.D.C. 2001). Where,
as here, “the plaintiff retains some personal stake in the
controversy and there are some outstanding issues that a court
may resolve, those claims may proceed for review even though an
intervening event might have rendered other issues moot.” Id. In
light of the Embassy’s final decision, an injunction prohibiting
the Embassy from refusing to process Baby M’s applications would
“accomplish nothing.” Larsen v. U.S. Navy, 525 F.3d 1, 4 (D.C.
Cir. 2008). The Court therefore finds as moot Mr. Sabra’s
request for injunctive relief. Accordingly, the Court DENIES
35
Mr. Sabra satisfies the redressability prong in seeking a

declaratory judgment that Baby M is entitled to U.S.

citizenship—such a declaration would redress his injury. See

Orangeburg, 862 F.3d at 1083. Mr. Sabra, however, fails to

satisfy the redressability element with respect to his request

for a writ of mandamus.

The parties agree that mandamus relief under 28 U.S.C.

§ 1361 is a “drastic remedy.” Compl., ECF No. 1 at 15 ¶ 61;

Pl.’s Mem., ECF No. 15-2 at 10; Def.’s Mem., ECF No. 18-1 at 29-

30. Indeed, the United States Court of Appeals for the District

of Columbia Circuit (“D.C. Circuit”) has instructed that “[t]he

remedy of mandamus is a drastic one, to be invoked only in

extraordinary circumstances.” Power v. Barnhart, 292 F.3d 781,

784 (D.C. Cir. 2002) (citation and internal quotation marks

omitted). “And it has long been settled that the Mandamus Act is

a law of last resort, available ‘only if [the plaintiff] has

exhausted all other avenues of relief and only if the defendant

owes him a clear nondiscretionary duty.’” Yee v. Jewell, 228 F.

Supp. 3d 48, 53 (D.D.C. 2017) (quoting Heckler v. Ringer, 466

U.S. 602, 616 (1984)).

“To show entitlement to mandamus, plaintiffs must

demonstrate (1) a clear and indisputable right to relief,

Mr. Sabra’s motion for summary judgment and GRANTS the
Secretary’s motion for summary judgment as to Count III.
36
(2) that the government agency or official is violating a clear

duty to act, and (3) that no adequate alternative remedy

exists.” Am. Hosp. Ass’n v. Burwell, 812 F.3d 183, 189 (D.C.

Cir. 2016). “These three threshold requirements are

jurisdictional; unless all are met, a court must dismiss the

case for lack of jurisdiction.” Id.; see also In re Medicare

Reimbursement Litig., 414 F.3d 7, 10 (D.C. Cir. 2005) (“Even

when the legal requirements for mandamus jurisdiction have been

satisfied, however, a court may grant relief only when it finds

compelling equitable grounds.”). Mr. Sabra bears “the burden of

showing that [his] right to issuance of the writ [of mandamus]

is clear and indisputable.” Power, 292 F.3d at 784 (citation and

internal quotation marks omitted).

Assuming, without deciding, that Mr. Sabra has a clear

right to relief, Mr. Sabra fails to demonstrate that the

Secretary has a clear duty to act. See Haig v. Agee, 453 U.S.

280, 282 (1981) (“The right to hold a passport is subordinate to

national security and foreign policy considerations, and is

subject to reasonable governmental regulation.”); see also

Def.’s Mem., ECF No. 18-1 at 32 (stating that “a U.S. Passport

or CRBA certainly qualifies as a ‘right or privilege as a

national.’” (quoting 8 U.S.C. § 1503)). As a member of this

Court explained, “passports are issued to all law-abiding

American citizens who apply for them and comply with the rules

37
prescribed,” but “it is not obligatory to issue one to every

citizen who desires it.” Alsaidi v. U.S. Dep’t of State, 292 F.

Supp. 3d 320, 327 (D.D.C. 2018) (citation omitted).

The Secretary correctly notes that “the action sought [in

this case] is discretionary, rather than ministerial.” Def.’s

Mem., ECF No. 18-1 at 31. Indeed, courts have recognized that

the issuance of CRBAs and passports falls within the Secretary’s

discretionary functions. See, e.g., Alsaidi, 292 F. Supp. 3d at

327 (finding that the “plaintiff ha[d] not demonstrated that

defendants owe[d] her a clear nondiscretionary duty” to renew

her U.S. passport where the National Passport Office determined

she was not a U.S. citizen); Retuya v. Chertoff, No. 8:08-CV-

935-T-17EAJ, 2009 WL 10697296, at *4 (M.D. Fla. Sept. 28, 2009)

(noting that “passport issuance is a discretionary function

exclusively reserved to the Executive Branch”), aff’d sub nom.

Retuya v. Sec’y, Dep’t of Homeland Sec., 412 F. App’x 185 (11th

Cir. 2010); Nickerson v. United States, No. CV 07-211 JH/WDS,

2007 WL 9662632, at *5 (D.N.M. Oct. 31, 2007) (explaining that

“the consular officer has full authority to either issue or deny

a CRBA depending on the officer’s subjective opinion whether the

applicant has established her claim to nationality”).

Congress expressly authorizes the Secretary to determine

the citizenship of a person outside of the United States.

8 U.S.C. § 1104(a). Section 211a explicitly provides that “[t]he

38
Secretary of State may grant and issue passports, and cause

passports to be granted, issued, and verified in foreign

countries by diplomatic and consular officers . . . on behalf of

the United States and no other person shall grant, issue, or

verify such passports.” 22 U.S.C. § 211a (emphasis added); see

also Dickson v. Sec’y of Def., 68 F.3d 1396, 1401 (D.C. Cir.

1995) (“When a statute uses a permissive term such as ‘may’

rather than a mandatory term such as ‘shall,’ this choice of

language suggests that Congress intends to confer some

discretion on the agency.”). Furthermore, “the consular officer

may issue to the parent or legal guardian” a CRBA based “[u]pon

application and the submission of satisfactory proof of birth,

identity and nationality.” 22 C.F.R. § 50.7(a) (emphasis added).

“Inasmuch as issuance of a passport is a discretionary

act,” Southern v. Powell, No. 03-5197, 2004 WL 434034, at *1

(D.C. Cir. Mar. 2, 2004) (per curiam), Mr. Sabra fails to meet

the heavy burden of demonstrating that the Secretary has a clear

duty to issue the CRBA and passport to Baby M in order to secure

mandamus relief. The Court therefore finds that Mr. Sabra does

not satisfy the redressability prong of Article III standing

with respect to his request for mandamus relief. Accordingly,

the Court DENIES Mr. Sabra’s motion for summary judgment and

GRANTS the Secretary’s motion for summary judgment as to Count

II.

39
 As previously explained, however, Mr. Sabra has met his

burden of establishing the redressability element because he

seeks declaratory relief that would redress his injury. See

Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 34 (D.D.C. 2018) (“So

long as plaintiffs allege some remedy that, were it granted

would create some possibility of [relief], plaintiffs will have

plausibly pled redressability.” (internal citations omitted)).

The Court therefore finds that Mr. Sabra has standing to pursue

his claims. See NTCH, Inc. v. FCC, 841 F.3d 497, 506 (D.C. Cir.

2016) (“Because [the plaintiff] has articulated an injury that

is traceable to the [agency’s] order and might be redressed by a

favorable decision from the court, it has met the requirements

of Article III so as to achieve standing[.]”), cert. denied,

137 S. Ct. 2277 (2017).

2. The Court Has Subject-Matter Jurisdiction

The remaining two sources of jurisdiction—federal question

jurisdiction under 28 U.S.C. § 1331 and the Declaratory Judgment

Act (“DJA”), 28 U.S.C. § 2201—confer subject-matter

jurisdiction. The Secretary is correct that “a plaintiff may not

proceed under the [DJA] alone because it is not an independent

source of jurisdiction.” Def.’s Mem., ECF No. 18-1 at 31. But

the Secretary fails to mention Mr. Sabra’s constitutional

claims. See, e.g., id.; Def.’s Opp’n, ECF No. 28 at 5; Def.’s

Reply, ECF No. 29 at 7.

40
 In Committee on Judiciary, U.S. House of Representatives v.

Miers, 558 F. Supp. 2d 53, 81 (D.D.C. 2008), a member of this

Court explained that where, as here, “the Constitution is the

source of the right allegedly violated, no other source of a

right—or independent cause of action—need be identified.” And

“in most cases a plaintiff would need to identify a statutory

(or a common law) cause of action to proceed in federal court,”

id., but that rule is inapplicable in “a case requesting

declaratory relief where subject matter jurisdiction was present

and a plaintiff’s constitutional rights were arguably implicated

simply because the plaintiff did not have an independent cause

of action apart from the DJA,” id. at 82.

In this case, this Court has subject-matter jurisdiction

under 28 U.S.C. § 1331. Because Mr. Sabra asserts constitutional

claims under the Fifth Amendment, see Compl., ECF No. 1 at 14 ¶

57, this Court’s jurisdiction “aris[es] under the Constitution .

. . of the United States,” 28 U.S.C. § 1331. Mr. Sabra argues

that “[his] claims, brought under the Fifth Amendment’s

guarantee of the right to due process, derive from the statutory

rights of Baby M to United States citizenship, because she was

born abroad to two United States citizens.” Pl.’s Opp’n, ECF No.

21 at 9. Mr. Sabra’s constitutional rights as well as Baby M’s

constitutional rights under the Fifth Amendment’s Due Process

Clause are “arguably implicated” by the Secretary’s denial of

41
the CRBA and passport applications. Miers, 558 F. Supp 2d at 82;

see also Shachtman v. Dulles, 225 F.2d 938, 941 (D.C. Cir. 1955)

(“The denial of a passport accordingly causes a deprivation of

liberty that a citizen otherwise would have.”). Putting aside

the DJA, Mr. Sabra may assert his constitutional claims as a

separate cause of action. Cf. Davis v. Passman, 442 U.S. 228,

242-44 (1979) (“[A] cause of action may be implied directly

under the equal protection component of the Due Process Clause

of the Fifth Amendment in favor of those who seek to enforce

this constitutional right.”). Accordingly, the Court has

subject-matter jurisdiction.

B. Sovereign Immunity

The Court next considers the issue of whether Mr. Sabra’s

claims are barred under the doctrine of sovereign immunity.

Under that doctrine, “the United States may not be sued without

its consent and that the existence of consent is a prerequisite

for jurisdiction.” Anderson v. Carter, 802 F.3d 4, 8 (D.C. Cir.

2015) (citation omitted). The Court has an independent

obligation to assure itself of its own jurisdiction, see Perry

Capital LLC v. Mnuchin, 864 F.3d 591, 619 (D.C. Cir. 2017), and

that “obligation extends to sovereign immunity because it is

‘jurisdictional in nature,’” id. (quoting FDIC v. Meyer, 510

U.S. 471, 475 (1994)).

42
 The Secretary argues that “the APA is one of the only

statutes containing a waiver of the sovereign immunity of the

United States, providing a cause of action for individuals

aggrieved by agency actions to seek judicial review of final

agency decisions.” Def.’s Mem., ECF No. 18-1 at 23 (citing

Loeffler v. Frank, 486 U.S. 549, 554 (1988)). 9 The Secretary goes

on to argue that “the United States has waived its sovereign

immunity with respect to claims seeking a judicial declaration

of citizenship only in the specific circumstances in which

Congress elected to make such an action available in 8 U.S.C.

§ 1503, and not otherwise.” Def.’s Suppl. Mem., ECF No. 34 at 6.

The Secretary contends—and the Court agrees—that “[t]he

only plausible alternative source of a waiver of immunity is the

APA.” Id. at 9; see also Swan v. Clinton, 100 F.3d 973, 981

(D.C. Cir. 1996) (holding that 28 U.S.C. § 1331 does not

constitute a waiver of sovereign immunity). The waiver,

contained in the relevant section of the APA, provides:

An action in a court of the United States
seeking relief other than money damages and
stating a claim that an agency or an officer

9 The Secretary “understands [Mr. Sabra’s] Complaint to include
an APA claim.” Def.’s Mem., ECF No. 18-1 at 23 (“[T]he claims in
Plaintiff’s Complaint . . . sound under the APA.”). Mr. Sabra
argues—and the Court agrees—that the APA “is not relevant in
this case because [he] does not bring an APA claim.” Pl.’s
Opp’n, ECF No. 21 at 7. Mr. Sabra, as the master of the
complaint, did not assert claims under the APA. This Court will
not construe the operative complaint as asserting such a claim.
See generally Compl., ECF No. 1 at 13-18 ¶¶ 50-78.
43
 or employee thereof acted or failed to act in
an official capacity or under color of legal
authority shall not be dismissed nor relief
therein be denied on the ground that it is
against the United States or that the United
States is an indispensable party.

5 U.S.C. § 702. “By its own terms, the waiver applies (1) when a

plaintiff claims that ‘an agency or an officer or employee

thereof acted or failed to act in an official capacity or under

color of legal authority,’ and (2) when the plaintiff ‘seek[s]

relief other than money damages.’” Mackinac Tribe v. Jewell,

87 F. Supp. 3d 127, 142 (D.D.C. 2015) (quoting 5 U.S.C. § 702),

aff’d, 829 F.3d 754 (D.C. Cir. 2016).

Here, Mr. Sabra challenges the Embassy’s refusal to issue

the CRBA and passport to Baby M, and Mr. Sabra seeks a

declaratory judgment. Mr. Sabra does not directly address the

Secretary’s arguments as to the sovereign immunity issue. See,

e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s Reply, ECF No. 23

at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9. In his

supplemental brief, however, Mr. Sabra cites Trudeau v. FTC,

456 F.3d 178, 187 (D.C. Cir. 2006) and Chacoty v. Pompeo, 392 F.

Supp. 3d 1, 12 (D.D.C. 2019) for the proposition that the

“waiver of sovereign immunity is not limited to APA claims.”

Pl.’s Suppl. Mem., ECF No. 30 at 9. The Secretary’s argument—

that the APA’s § 702’s waiver is inapplicable here because

“Plaintiff’s application has not yet been adjudicated, nor has

44
the time for its adjudication expired,” Def.’s Suppl. Mem., ECF

No. 34 at 10—has been foreclosed by D.C. Circuit precedent. See

Trudeau, 456 F.3d at 187 (holding that the waiver of sovereign

immunity “applies regardless of whether [the challenged agency

action] constitutes ‘final agency action’”). Moreover, the

Secretary does not dispute that the APA’s waiver of sovereign

immunity would apply to Mr. Sabra’s “claim for a freestanding

‘judgment and declaration that Baby M is entitled to U.S.

citizenship’” where the Embassy adjudicated the CRBA and

passport applications. Def.’s Suppl. Mem., ECF No. 34 at 10. It

is undisputed that the Embassy adjudicated those applications

and rendered a final decision in October 2019.

Although Mr. Sabra does not assert an APA claim, the APA

waives sovereign immunity for a suit brought under 28 U.S.C.

§ 1331 seeking equitable relief rather than monetary relief for

constitutional violations. “It is well-established that

sovereign immunity does not bar suits for specific relief

against government officials where the challenged actions of the

officials are alleged to be unconstitutional or beyond statutory

authority.” Clark v. Library of Congress, 750 F.2d 89, 102 (D.C.

Cir. 1984). “Federal courts have subject-matter jurisdiction

over suits seeking declaratory and injunctive relief because the

APA waives the federal agency’s sovereign immunity even when the

claim is one directly under the Constitution and not under the

45
APA.” Bolger v. District of Columbia, 510 F. Supp. 2d 86, 91

(D.D.C. 2007). Sovereign immunity is not an obstacle to

Mr. Sabra’s Fifth Amendment claims and request for a declaratory

judgment. The Court therefore finds that the doctrine of

sovereign immunity does not bar Mr. Sabra’s claims in Count I.

C. The Secretary Is Entitled to Summary Judgment as
to Count I

Mr. Sabra moves for summary judgment on the basis that he

is entitled to a declaration that Baby M is a U.S. citizen.

Pl.’s Mem., ECF No. 15-2 at 9l; see Compl., ECF No. 1 at 13-14

¶¶ 51-57. The Secretary moves for summary judgment, arguing that

there is no basis for a declaratory judgment in this case.

Def.’s Mem., ECF No. 18-1 at 31-33.

The DJA provides:

In a case of actual controversy within its
jurisdiction . . . any court of the United
States . . . may declare the rights and other
legal relations of any interested party
seeking such declaration, whether or not
further relief is or could be sought. Any such
declaration shall have the force and effect of
a final judgment or decree and shall be
reviewable as such.

28 U.S.C. § 2201(a) (emphasis added). The Supreme Court has

recognized that “[t]his text has long been understood ‘to confer

on federal courts unique and substantial discretion in deciding

whether to declare the rights of litigants.’” MedImmune, Inc. v.

Genentech, Inc., 549 U.S. 118, 136 (2007) (quoting Wilton v.

46
Seven Falls Co., 515 U.S. 277, 286 (1995)). For the reasons

explained below, the Court declines to exercise its discretion

under the DJA.

As a threshold matter, the DJA does not provide a cause of

action, Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011), and

the Act, by itself, is not an independent source of

jurisdiction, Lovitky v. Trump, 918 F.3d 160, 161 (D.C. Cir.

2019). As previously explained, however, Mr. Sabra may proceed

under the DJA because the independent basis of jurisdiction is

the Fifth Amendment. See Miers, 558 F. Supp 2d at 81-82.

Mr. Sabra asserts that the Embassy’s refusal to issue the CRBA

and U.S. passport to Baby M constitutes a violation of Baby M’s

fundamental rights to citizenship and travel under the Fifth

Amendment. Compl., ECF No. 1 at 14 ¶ 57. Mr. Sabra contends that

his due process claims “derive from the statutory rights of Baby

M to [U.S.] citizenship, because [Baby M] was born abroad to two

[U.S.] citizens.” Pl.’s Opp’n, ECF No. 21 at 9 (citing 8 U.S.C.

§ 1401(c)). Mr. Sabra argues that this “action for a declaratory

judgment is available as a remedy to secure a determination of

citizenship” because “[t]he court’s power to enjoin

unconstitutional acts by the government . . . is inherent in the

Constitution itself.” Pl.’s Suppl. Mem., ECF No. 30 at 5

(quoting Chacoty, 392 F. Supp. 3d at 11-12).

47
 In response, the Secretary does not challenge this Court’s

authority to enjoin unconstitutional acts. Def.’s Suppl. Mem.,

ECF No. 34 at 7. But the Secretary notes that “[Mr. Sabra] is

not asking the Court to ‘enjoin an unconstitutional act.’” Id.

(quoting Pl.’s Suppl. Mem., ECF No. 30 at 5). Rather,

“[Mr. Sabra] is asking the Court to declare Baby M a [U.S.]

citizen.” Id. The Secretary argues that Mr. Sabra cannot ignore

the INA’s procedures set forth in 8 U.S.C. § 1503 that afford

Mr. Sabra with judicial relief in the form of a judicial

declaration of U.S. citizenship. See id. The Secretary contends

that Mr. Sabra’s request for a judicial declaration that Baby M

is a U.S. citizen “does not hold” because such “‘power to make

someone a citizen of the United States has not been conferred

upon the federal courts, like mandamus or injunction, as one of

their generally applicable equitable powers.’” Id. (quoting INS

v. Pangilinan, 486 U.S. 875, 883-84 (1988) (emphasis added)).

And the Secretary relies on Hizam v. Kerry, 747 F.3d 102, 110

(2d Cir. 2014), in which the Second Circuit made clear that

“[c]ourts cannot grant citizenship through their equitable

powers.” Def.’s Suppl. Mem., ECF No. 34 at 7 (quoting Hizam, 747

F.3d at 110). Mr. Sabra does not attempt to distinguish

Pangilinan or Hizam. See Pl.’s Reply, ECF No. 42 at 1-6. Before

turning to the parties’ arguments, the Court first analyzes

Mr. Sabra’s due process claims.

48
 1. Mr. Sabra’s Due Process Claims

Under the Fifth Amendment, no person shall “be deprived of

life, liberty, or property, without due process of the law.”

U.S. Const. amend. V. To prevail on a due process claim, a

plaintiff must demonstrate three elements: (1) “deprivation of a

protected liberty or property interest,” (2) “by the

government,” (3) “without the process that is ‘due’ under the

Fifth Amendment.” NB ex rel. Peacock v. District of Columbia,

794 F.3d 31, 41 (D.C. Cir. 2015). The “plaintiff must show that

there was a cognizable liberty or property interest at stake.”

Smirnov v. Clinton, 806 F. Supp. 2d 1, 12 (D.D.C. 2011) (citing

Mathews v. Eldridge, 424 U.S. 319, 332 (1976)).

Mr. Sabra satisfies the first two elements because the

Supreme Court has recognized “[t]he right to travel is a part of

the ‘liberty’ of which the citizen cannot be deprived without

due process of law under the Fifth Amendment.” Kent v. Dulles,

357 U.S. 116, 125 (1958) (holding that the Secretary of State

was not authorized to deny passports to members of the Communist

Party). The denial of a passport deprives a U.S. citizen of the

right to international travel. See id.; see also Castro v.

Freeman, No. CIV.A. B-09-208, 2011 WL 11535494, at *12 (S.D.

Tex. Nov. 22, 2011) (finding that U.S. citizens “have due

process interests in their passports and the proper adjudication

of those passports”). But the right of international travel is

49
“no more than an aspect of the ‘liberty’ protected by the Due

Process Clause of the Fifth Amendment . . . [that] can be

regulated within the bounds of due process.” Califano v.

Aznavorian, 439 U.S. 170, 176 (1978).

The Fifth Amendment’s “due process guarantee has both

procedural and substantive components.” Jacinto-Castanon de

Nolasco v. U.S. Immigration & Customs Enf’t, 319 F. Supp. 3d

491, 499 (D.D.C. 2018). Because Mr. Sabra does not indicate

whether the denial of the CRBA and passport applications

constitutes a violation of procedural or substantive due

process, see, e.g., Pl.’s Mem., ECF No. 15-2 at 5; Pl.’s Opp’n,

ECF No. 21 at 9; Pl.’s Reply, ECF No. 23 at 10-13, the Court

analyzes both components.

a. Procedural Due Process

“Under procedural due process, the government is required

to provide individuals with certain procedural rights before it

may deprive them of life, liberty, or property.” Barnes v.

District of Columbia, 793 F. Supp. 2d 260, 275 n.11 (D.D.C.

2011) (citing Mathews, 424 U.S. at 332–33); see also Armstrong

v. Manzo, 380 U.S. 545, 552 (1965) (“A fundamental requirement

of due process is ‘the opportunity to be heard.’ It is an

opportunity which must be granted at a meaningful time and in a

meaningful manner.”). “Due process is flexible and calls for

such procedural protections as the particular situation

50
demands.” Mathews, 424 U.S. at 334 (quoting Morrissey v. Brewer,

408 U.S. 471, 481 (1972)).

Here, Mr. Sabra does not argue that the Embassy failed to

provide him with an opportunity to be heard “at a meaningful

time and in a meaningful manner.” Armstrong, 380 U.S. at 552.

Neither does Mr. Sabra challenge the applicable statutes or

regulations governing the issuance of CRBAs and passports. See,

e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s Reply, ECF No. 23

at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9. Mr. Sabra does

not contend that the Embassy did not give him an opportunity to

object to the Embassy’s adjudication of the CRBA and passport

applications or contest the Embassy’s decision to deny the

applications. See, e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s

Reply, ECF No. 23 at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9.

Nor could Mr. Sabra make such arguments on the current record.

Before adjudicating the applications, the Embassy extended the

deadline for Mr. and Mrs. Sabra to submit additional evidence

until September 13, 2019. Pl.’s SOMF, ECF No. 21-2 at 8. After

litigation had already begun, the Embassy extended the deadline

for additional documentation until October 15, 2019. Joint

Status Report, ECF No. 51 at 2.

The Embassy offered Mr. and Mrs. Sabra a November 2019

appointment at Erez Crossing prior to adjudicating the

applications. Id. at 1. Mr. and Mrs. Sabra declined that

51
invitation. Id. at 1-2. Thereafter, the Embassy provided Mr. and

Mrs. Sabra with written notification denying the CRBA and

passport applications, see 22 C.F.R. § 51.65, by issuing the

final decision on October 22, 2019, Final Decision, ECF No. 55-1

at 2. In rendering the decision, the Embassy stated that the

State “Department reviewed and considered all submissions in

support of the pending applications made to the U.S. Embassy . .

. and as part of the pending litigation in [this case].” Id.

The Secretary points out that “an individual has no right,

clear or otherwise, to be issued a U.S. passport—and the

Secretary of State has no duty to issue one—unless he [or she]

complies with the controlling rules and regulations and

established that that he [or she] meets the requirements.”

Def.’s Opp’n, ECF No. 28 at 8. According to the Secretary,

“[Mr. Sabra] has not complied with all of these requirements.”

Id. at 9. For instance, it is undisputed that Baby M did not

attend the interview with Mrs. Sabra and Vice-Consul Woda at

Erez Crossing on June 12, 2019. Pl.’s SOMF, ECF No. 21-1 at 2.

Section 51.28(a) requires the personal appearance of a minor

under the age of sixteen “unless the personal appearance is

specifically excused by a senior passport officer, pursuant to

guidance issued by the Department.” 22 C.F.R. § 51.28(a).

Mr. Sabra points out that the FAM permits an exception for

emergency circumstances, Pl.’s SOMF, ECF No. 21-1 at 2-3, but

52
the consular officer decides whether to exercise his or her

discretion to waive the personal appearance requirement, id. And

Vice-Consul Woda did not excuse Baby M’s personal appearance.

Id.; see also Woda Decl., ECF No. 18-3 at 2 ¶ 9. Furthermore,

Mr. and Mrs. Sabra did not present Baby M for a subsequent

interview with the Embassy in November 2019 at Erez Crossing

following the stabilization of Baby M’s health condition. See

Joint Status Report, ECF No. 51 at 2.

Because the Embassy afforded Mr. and Mrs. Sabra with a

meaningful opportunity to contest the Embassy’s refusal to issue

the CRBA and passport to Baby M, the Court therefore finds that

Mr. Sabra fails to demonstrate that the Embassy’s actions did

not comport with procedural due process.

b. Substantive Due Process

“Substantive due process bars government interference with

certain fundamental rights ‘regardless of the fairness of the

procedures used to implement them.’” Jacinto-Castanon de

Nolasco, 319 F. Supp. 3d at 499 (quoting Daniels v. Williams,

474 U.S. 327, 331 (1986)). “There are two strands of the

substantive due process doctrine.” Id. (citation and internal

quotation marks omitted). “The first strand protects rights that

are ‘fundamental,’ whereas the second ‘protects against the

exercise of governmental power that shocks the conscience.’” Id.

(citation omitted); see also Cty. of Sacramento v. Lewis, 523

53
U.S. 833, 849 (1998) (explaining that “conduct intended to

injure in some way unjustifiable by any government interest is

the sort of official action most likely to rise to the

conscience-shocking level”).

The Court assumes that Mr. Sabra invokes the “fundamental”

rights strand of substantive due process because Mr. Sabra does

not argue that the Embassy’s actions rise to the level of

shocking the conscience. See Jacinto-Castanon de Nolasco, 319 F.

Supp. 3d at 499. Assuming, without deciding, that Baby M is a

U.S. citizen, the Embassy’s denial of Baby M’s CRBA and passport

applications restricted her right to international travel. Such

a right is not equivalent to the fundamental right of interstate

travel, however. See, e.g., Haig, 453 U.S. at 306–07; Weinstein

v. Albright, 261 F.3d 127, 140 (2d Cir. 2001) (“Plaintiff’s

right to a passport and to travel internationally, while a

liberty interest protected by the Due Process Clause of the

Fifth Amendment, is not a fundamental right equivalent to the

right to interstate travel.”). As the D.C. Circuit has

explained, “international travel is no more than an aspect of

liberty that is subject to reasonable government regulation

within the bounds of due process, whereas interstate travel is a

fundamental right subject to a more exacting standard.” Hutchins

v. District of Columbia, 188 F.3d 531, 537 (D.C. Cir. 1999)

(citing Haig, 453 U.S. at 306–07). As a matter of law, the right

54
to international travel is not a fundamental one. Haig, 453 U.S.

at 306-07.

Mr. Sabra’s remaining claim is that the Embassy’s failure

to issue Baby M’s CRBA and passport constitutes a violation of

Baby M’s “fundamental” right to citizenship. See Compl., ECF No.

1 at 14 ¶ 57. In dicta, the Supreme Court has discussed the “the

fundamentality of citizenship.” Tuaua v. United States, 951 F.

Supp. 2d 88, 95 n.11 (D.D.C. 2013) (citing Trop v. Dulles, 356

U.S. 86, 103 (1958) (plurality opinion); Afroyim v. Rusk, 387

U.S. 253, 267-68 (1967)), aff’d, 788 F.3d 300 (D.C. Cir. 2015).

“When the Government acts to take away the fundamental right of

citizenship, the safeguards of the Constitution should be

examined with special diligence.” Trop, 356 U.S. at 103; see

also Afroyim, 387 U.S. at 267-68 (“Citizenship is no light

trifle to be jeopardized any moment Congress decides to do so

under the name of one of its general or implied grants of

power.”). Mr. Sabra does not cite any case law for the

proposition that citizenship is a fundamental right. See Pl.’s

Opp’n, ECF No. 21 at 9-10. As such, Mr. Sabra has failed to

establish a fundamental right to citizenship. To the extent

Mr. Sabra asserts a violation of substantive due process,

Mr. Sabra has not established that the government infringed on a

“fundamental” right.

55
 Even assuming, arguendo, that Mr. Sabra established a due

process violation, Mr. Sabra does not provide a basis for a

declaratory judgment on the current record. Seeking a judicial

declaration of U.S. citizenship, Mr. Sabra argues that his due

process claims derive from Baby M’s rights to U.S. citizenship

under 8 U.S.C. § 1401(c). Pl.’s Opp’n, ECF No. 21 at 9. In

Mr. Sabra’s view, Baby M automatically became a U.S. citizen at

birth because Section 1401(c) makes clear that a person “shall”

be a citizen at birth where: “a person born outside of the

United States . . . of parents both of whom are citizens of the

United States and one of whom has had a residence in the United

States . . ., prior to the birth of such person.” Pl.’s Mem.,

ECF No. 15-2 at 7 (quoting 8 U.S.C. § 1401(c)). Mr. Sabra

contends that Section 1401(c) does not require proof of a “blood

relationship” between the child and the U.S. citizen parents.

Id. Mr. Sabra relies on Miller v. Albright, 523 U.S. 420 (1998)

for the proposition that a “blood relationship to the birth

mother is immediately obvious and is typically established by

hospital records and birth certificates.” Id. at 8 (quoting

Miller, 523 U.S. at 436).

The State Department has interpreted 8 U.S.C. §§ 1401 and

1409 to require proof of a biological parent-child relationship.

See, e.g., Def.’s Opp’n, ECF No. 28 at 18 (citing 8 FAM § 301.4-

1(B)); Def.’s Suppl. Mem., ECF No. 34 at 23 (arguing that “[t]he

56
phrase ‘born . . . of parents’ as set forth in Section 1401(c)

(emphasis added) has an inherently biological connotation”). The

FAM states that “[a]bsent a blood relationship between the child

and the parent on whose citizenship the child’s own claim is

based, U.S. citizenship is not acquired.” 8 FAM § 301.4-

1(D)(1)(a). In addition, the FAM provides: “Children born in

wedlock are generally presumed to be the issue of that marriage.

This presumption is not determinative in citizenship cases,

however, because an actual biological relationship to a U.S.

citizen parent is required.” 8 FAM § 301.4-1(D)(1)(d).

According to the Secretary, “the State Department applies a

preponderance-of-the-evidence standard, in which ‘evidence of

blood relationship is of greater weight than the evidence to the

contrary.’” Def.’s Mem., ECF No. 18-1 at 18 (quoting 8 FAM

§ 301.4-1(D)(b)(2)). The Secretary explains that the origins of

the “biological requirement” in the FAM are rooted in “the

traditional Roman Civil Law concept of jus sanguinis,” and the

State Department’s longstanding “understanding” of the blood

requirement “is evidenced by archival copies of the [FAM] from

the early 1970s, as well as earlier guidance sent to diplomatic

posts in the 1960s and reflects the biological and social

realities of the era predating the rise of assisted reproductive

technology.” Def.’s Suppl. Mem., ECF No. 34 at 20.

57
 The historical underpinnings of the FAM do not persuade

this Court that Section 1401(c) requires proof of a biological

relationship. Cf. Jaen v. Sessions, 899 F.3d 182, 190 (2d Cir.

2018) (concluding that “a blood relationship is not required to

establish parentage for purposes of acquired citizenship when

the child is born into marriage”). Indeed, courts have rejected

the Secretary’s interpretation that the phrase “born . . . of

parents” in Section 1401 requires a “biological” or “blood”

relationship between a child and a U.S. citizen parent for

purposes of citizenship. E.g., Scales v. INS, 232 F.3d 1159,

1164 (9th Cir. 2000) (holding that “[a] straightforward reading

of § 1401 indicates . . . that there is no requirement of a

blood relationship”); Dvash-Banks v. Pompeo, No. CV 18-523-

JFW(JCX), 2019 WL 911799, at *7 (C.D. Cal. Feb. 21, 2019)

(same), appeal filed, No. 19-55517 (9th Cir. May 6, 2019); cf.

Mot. Hr’g Tr. at 6-7, 34, 38, Blixt v. U.S. Dep’t of State, Civ.

Action No. 18-124 (D.D.C. May 21, 2019), ECF No. 38 (Sullivan,

J.) (denying the State Department’s motion to dismiss).

The D.C. Circuit has indicated that “informal documents”

like the FAM and the State Department’s Foreign Affairs Handbook

are distinct from “rules or regulations” accorded deference

under Chevron U.S.A. Inc. v. Natural Resources Defense Council,

Inc., 467 U.S. 837 (1984). Miller v. Clinton, 687 F.3d 1332,

1341 (D.C. Cir. 2012); see also Dvash-Banks, 2019 WL 911799, at

58
*5 (“The FAM represents the State Department’s unilateral

declarations and is not the product of a formal adjudication or

notice-and-comment rulemaking or congressional action.”). The

Secretary argues—and the Court disagrees—that “[t]he State

Department’s interpretation of the INA provisions governing

acquisition of U.S. citizenship abroad . . . should thus be

given deference.” Def.’s Suppl., ECF No. 34 at 26 (citing

Skidmore v. Swift & Co., 323 U.S. 134 (1944)).

The State Department’s interpretation of the relevant INA

provisions lacks the “power to persuade” under Skidmore’s less

deferential standard because the plain language of 8 U.S.C.

§ 1401 does not require proof of a “biological relationship”

between the child born abroad to married U.S. citizen parents.

Skidmore, 323 U.S. at 140. This Court joins the other courts in

declining to defer to the FAM. See, e.g., Jaen, 899 F.3d at 187

n.4; Scales, 232 F.3d at 1165–66; Chacoty, 392 F. Supp. 3d at

15. To the extent the Embassy required Mr. and Mrs. Sabra to

prove a blood or biological relationship, see Pl.’s Ex. E, ECF

No. 3 at 49, such evidence is not required under Section

1401(c), see 8 U.S.C. § 1401(c). 10

10Having found that Section 1401(c) does not require a
“biological relationship,” see 8 U.S.C. § 1401(c), the Court
finds as moot Mr. Sabra’s request for a judicial declaration
that “he and his wife have sufficiently proven the biological
relationship between themselves and Baby M.” Compl., ECF No. 1
at 13 ¶ 51. For the same reasons, the Court need not address
59
 That being said, the Court agrees with the Secretary that

the Embassy’s “demand here” for additional information was

“sensible even if there were no biological-relationship

requirement.” Def.’s Suppl. Mem., ECF No. 34 at 27. Congress

granted the Secretary with the authority to determine the

citizenship of a person not in the United States. 8 U.S.C.

§ 1104. Mr. Sabra bears the burden of demonstrating that Baby M

is a U.S. citizen, see 22 C.F.R. § 51.40, and Mr. Sabra “must

provide documentary evidence that [Baby M] is a U.S. citizen,”

id. § 51.41 (emphasis added). And Mr. Sabra “shall be required

to submit proof of the child’s birth, identity and citizenship

meeting the evidence requirements” in order for Baby M to

receive a CRBA and U.S. passport. 22 C.F.R. § 50.5 (emphasis

added). In the absence of “satisfactory proof of birth, identity

and nationality,” the consular officer retains the discretion to

deny the CRBA and passport to the parent or legal guardian.

22 C.F.R. § 50.7(a) (emphasis added). The applicable statutes or

regulations do not require the State Department to accept

documents as proof of birth, identity, and citizenship if those

documents raise concerns of authenticity and reliability.

Mr. Sabra’s argument that the Embassy improperly applied a
“clear and convincing evidence” standard for proof of the
biological relationship. See Pl.’s Opp’n, ECF No. 21 at 8-9.
60
 On the current record, the Court is not persuaded that the

Embassy’s request for additional documentation runs afoul of due

process given that the State Department may request additional

evidence for proof of citizenship. See, e.g., 22 C.F.R. § 51.45;

22 C.F.R. § 51.23(c). After reviewing Mr. and Mrs. Sabra’s

submissions and the filings in this case in support of the CRBA

and passport applications, the Embassy determined that Mr. Sabra

failed to present satisfactory proof of Baby M’s birth,

identity, and citizenship. See Final Decision, ECF No. 55-1 at

2. It is true that “an authentic copy of the record of the birth

filed with local authorities” typically qualifies as proof of

the child’s birth. 22 C.F.R. § 50.5(a). It is undisputed that

Mrs. Sabra submitted to the Embassy “Baby M’s official

Palestinian birth certificate.” Pl.’s Opp’n, ECF No. 19 at 11.

Mr. Sabra argues that the State Department’s regulations advise

that the Embassy should accept the Palestinian birth certificate

“[e]ven in an instance of suspected fraud.” Id. at 15. Mr. Sabra

goes on to argue that “there is no deceit, or drama, or

detective work needed” here because “there are simply two U.S.

citizens seeking to care for their ill and minor child, born of

their marriage and statutorily entitled to her rights of U.S.

citizenship.” Id.

The Secretary does not dispute that Mr. and Mrs. Sabra are

U.S. citizens, and that Mr. Sabra “had a residence in the United

61
States” before Baby M’s birth. Def.’s Suppl. Mem., ECF No. 34 at

17 (quoting 8 U.S.C. § 1401(c)). The Secretary acknowledges that

“a birth certificate can usually [be] accepted as primary

evidence of parentage where there are no indicia of potential

fraud and no contradictory evidence or information.” Def.’s

Opp’n, ECF No. 28 at 15-16. The Secretary points out that the

Palestinian birth certificate was “issued more than a month

after [Baby M’s] alleged date of birth,” id. at 15, but the

relevant regulation that applies to persons born outside of the

United States does not provide a reasonable timeframe for the

issuance of a birth certificate, see 22 C.F.R. § 50.5(a).

Nonetheless, the Secretary points out that Vice-Consul Woda

could not verify the information contained in the Palestinian

birth certificate as it is a document issued by the Hamas-

affiliated Ministry of the Interior, and Hamas is a designated

Foreign Terrorist Organization. Def.’s Suppl. Mem., ECF No. 34

at 27.

Mr. Sabra’s argument—that the Embassy should accept the

Palestinian birth certificate as evidence of Baby M’s birth,

identity, and citizenship—is unavailing. Putting aside Vice-

Consul Woda’s concerns with the Palestinian birth certificate,

Mr. Sabra fails to acknowledge the State Department’s discretion

to require additional evidence as proof of birth, identity, and

citizenship. See, e.g., Pl.’s Opp’n, ECF No. 21 at 7-17; Pl.’s

62
Reply, ECF No. 23 at 5-21; Pl.’s Suppl. Mem., ECF No. 30 at 3-9.

Section 51.23(c) provides that the State Department “may”

require a passport applicant to provide “additional evidence of

identity as it deems necessary.” 22 C.F.R. § 51.23(c). The same

is true for additional evidence of U.S. citizenship. See 22

C.F.R. § 51.45. Indeed, the Embassy found it necessary to

request additional evidence. See Def.’s Suppl. Mem., ECF No. 34

at 27.

The Court cannot ignore that Mr. Sabra has failed to

provide critical information, specifically Baby M’s written

medical records to substantiate Baby M’s birth and health

condition. Plaintiff’s counsel stated on the record that “[she]

haven’t seen the medical records.” Mot. Hr’g Rough Tr. (Aug. 16,

2019) at 105. Mr. and Mrs. Sabra declined the State Department’s

invitation to enlist the services of the medical doctor

practicing in Gaza who has previously contracted with the

Embassy to perform a medical examination and issue a written

report. See Def.’s Status Report, ECF No. 40 at 1-4. Dr.

[REDACTED] describes Baby M’s condition in general terms, see

Sealed [REDACTED] Decl., ECF No. 3 at 21, but Dr. [REDACTED]’s

declaration is not accompanied by supporting written medical

records, see Def.’s Reply, ECF No. 29 at 14. The Secretary

correctly points out that Dr. [REDACTED]’s declaration is

“written in English and contains no indication that it was

63
translated from Arabic.” Def.’s Opp’n, ECF No. 28 at 16. But it

is undisputed that Vice-Consul Woda used a translator to speak

with Dr. [REDACTED] on July 1, 2019, because Dr. [REDACTED] does

not speak English. Id. Furthermore, Dr. [REDACTED] “declare[s]

under penalty of perjury that the foregoing is true and correct

based on [his] personal knowledge,” Sealed [REDACTED] Decl., ECF

No. 3 at 21, but Dr. [REDACTED]’s declaration fails to comply

with 28 U.S.C. § 1746, see id. 11

The Pediatric Admission Form is problematic because it is

not accompanied by any written medical records and there is no

indication whether a medical provider generated the form. Def.’s

Ex. 6, ECF No. 28-2 at 3. The Pediatric Admission Form states

that Baby M was “referred from Al Durra Hospital” with a certain

condition, and “[p]resented to Al Durra Hospital” with

respiratory distress. Id. According to Vice-Consul Woda, the

11Section 1746(1) provides specific language for declarations:
“If executed without the United States: ‘I declare (or certify,
verify, or state) under penalty of perjury under the laws of the
United States of America that the foregoing is true and correct.
Executed on (date). (Signature)’.” 28 U.S.C. § 1746(1) (emphasis
added). “Under this statute, any declaration executed outside of
the United States must state either that it is made ‘under
penalty of perjury under the laws of the United States of
America’ or a substantially similar form.” In re Korean Air
Lines Co., Ltd. Antitrust Litig., No. CV0705107SJOAGRX, 2013 WL
12216516, at *2 (C.D. Cal. Dec. 6, 2013). In this case,
Dr. [REDACTED] executed the declaration outside of the United
States, Pl.’s SOMF, ECF No. 21-2 at 6, and Mr. Sabra did not
file an amended declaration on behalf of Dr. [REDACTED] to
comply with 28 U.S.C. § 1746. See generally Docket for Civ.
Action No. 19-2090.
64
Pediatric Admission Form does not contain Baby M’s “diagnosis or

treatment from either hospital.” Woda Suppl. Decl., ECF No. 28-2

at 1 ¶ 6. With the exception of Baby M’s name, the header, and

the address, the Pediatric Admission Form is written in English.

Def.’s Ex. 6, ECF No. 28-2 at 3. Vice-Consul Woda “concluded

from this that the [Pediatric Admission Form] was prepared

specifically for presentation to the Embassy rather than in the

regular course of [Baby M’s] medical treatment.” Woda Suppl.

Decl., ECF No. 28-2 at 1 ¶ 4.

Mr. Sabra did not attach the Pediatric Admission Form as an

exhibit to the complaint. See generally Compl., ECF No. 1. After

the Secretary attached the Pediatric Admission Form to Vice-

Consul Woda’s supplemental declaration, see Def.’s Ex. 6, ECF

No. 28-2 at 3, Mr. Sabra subsequently filed a declaration from

Mrs. Sabra with the Pediatric Admission Form as an exhibit, see

Pl.’s Ex. L, ECF No. 52-2 at 16. According to Mrs. Sabra, “[Baby

M] was diagnosed with “[REDACTED].” P. Sabra Decl., ECF No. 52-2

at 4 ¶ 26. Mrs. Sabra avers that the form was created on June 9,

2019 in her presence for Baby M’s admission to Al Shifa

hospital, id., and she was not given any medical records, id. at

4 ¶ 27. It is not apparent whether a medical provider generated

the form. See Pl.’s Ex. L, ECF No. 52-2 at 16.

In his reply brief, Mr. Sabra does not address the issues

raised by Vice-Consul Woda with respect to the Pediatric

65
Admission Form. See Pl.’s Reply, ECF No. 23 at 20. Rather,

Mr. Sabra argues that Vice-Consul Woda’s supplemental

declaration violates the so-called “sham affidavit rule,” id.,

which “precludes a party from creating an issue of material fact

by contradicting prior sworn testimony unless the shifting party

can offer persuasive reasons for believing the supposed

correction is more accurate than the prior testimony,” Galvin v.

Eli Lilly & Co., 488 F.3d 1026, 1030 (D.C. Cir. 2007) (citation

and internal quotation marks omitted). “[F]or the doctrine to

apply, ‘the affidavit must clearly contradict prior sworn

testimony, rather than clarify confusing or ambiguous

testimony.’” St. Paul Mercury Ins. Co. v. Capitol Sprinkler

Inspection, Inc., 573 F. Supp. 2d 152, 160–61 (D.D.C. 2008)

(quoting Hinch v. Lucy Webb Hayes Nat. Training Sch., 814 A.2d

926, 930 (D.C. 2003) (emphasis added)).

Here, Mr. Sabra argues that the Secretary fails to provide

a “compelling reason” for Vice-Consul Woda’s “contradictions or

original failure to provide the Pediatric Admission Form.” Pl.’s

Reply, ECF No. 23 at 20. The Secretary concedes Mr. Sabra’s

argument by not responding to it. See Def.’s Reply, ECF No. 29

at 5-20. Nonetheless, Mr. Sabra fails to point to what specific

averments in Vice-Consul Woda’s first declaration clearly

contradict his statements in the supplemental declaration. See

Pl.’s Reply, ECF No. 23 at 20. Mr. Sabra appears to take issue

66
with Vice-Consul Woda’s amendment as to whether he retained the

Pediatric Admission Form after the June 12, 2019 interview with

Mrs. Sabra. See id. In his first declaration, Vice-Consul Woda

avers that the Pediatric Admission Form was “not retained.” Woda

Decl., ECF No. 18-3 at 2 ¶ 9 (emphasis added). In his

supplemental declaration, however, Vice-Consul Woda declares

that “[he] subsequently recalled that [he] took a photograph of

that document, a true and correct copy of which is attached as

Exhibit 6.” Woda Suppl. Decl., ECF No. 28-2 at 1 ¶ 3. Vice-

Consul Woda does not aver that he retained a physical copy of

the Pediatric Admission Form. See id.

Having reviewed Vice-Consul Woda’s declarations, the Court

disagrees that the new information warrants a finding that Vice-

Consul Woda’s supplemental declaration is a “sham affidavit.” As

the D.C. Circuit has explained, the sham affidavit rule can be

misapplied where a “supplemental declaration presented new

information rather than contradictory information.” U.S. Dep’t

of Justice v. Daniel Chapter One, 650 F. App’x 20, 25 (D.C. Cir.

2016). Vice-Consul Woda provided new information in the form of

a photograph of the Pediatric Admission Form to support his

supplemental declaration. See Woda Suppl. Decl., ECF No. 28-2 at

1 ¶ 3. Even if the Court deemed Vice-Consul Woda’s supplemental

declaration as a “sham affidavit,” the Court could consider the

Pediatric Admission Form because that document is attached as an

67
exhibit to Vice-Consul Woda’s supplemental declaration and Mrs.

Sabra’s declaration. Compare Def.’s Ex. 6, ECF No. 28-2 at 3,

with Pl.’s Ex. L, ECF No. 52-2 at 16. Mr. Sabra does not oppose

the introduction of the Pediatric Admission Form. See Pl.’s

Reply, ECF No. 23 at 20. Even if the Court did not consider

Vice-Consul Woda’s supplemental declaration, the issues with the

Pediatric Admission Form remain the same.

The current record contains the following inconsistencies

that support the Embassy’s final decision that Mr. and Mrs.

Sabra’s submissions are insufficient proof of Baby M’s birth,

identity, and citizenship: (1) Mr. Sabra avers that Baby M

“[REDACTED],” Decl. of Mohammed Sabra (“M. Sabra Decl.”), ECF

No. 21-1 at 2 ¶ 9, but the Pediatric Admission Form clearly

states that [REDACTED],” Def.’s Ex. 6, ECF No. 28-2 at 3;

(2) Mr. Sabra’s Statement of Material Facts provides that “Dr.

[REDACTED] delivered Baby M at her birth,” Pl.’s Reply to Def.’s

Counterstatement to Pl.’s SOMF, ECF No. 23-2 at 4 ¶ 12, but Mrs.

Sabra avers that “Dr. [REDACTED] arrived moments after [Baby M]

was born,” P. Sabra Decl., ECF No. 52-2 at 3 ¶ 19, and it is

undisputed that Dr. [REDACTED] did not witness Baby M’s birth,

Pl.’s SOMF, ECF No. 21-2 at 7; and (3) the “discharge record”

has the handwritten words “Private Clinic” in Arabic over

whiteout as Baby M’s place of birth, Pl.’s Ex. F, ECF No. 3 at

51-52, but Mrs. Sabra avers that Baby M was born at home, P.

68
Sabra Decl., ECF No. 52-2 at 3 ¶ 18. The Secretary correctly

points out that “[n]othing the Sabras provided to the Embassy or

the Court prior to [Mr. Sabra’s] opposition papers . . .

reflected a home birth.” Def.’s Rely, ECF No. 29 at 11.

The Court is troubled by Mr. Sabra’s failure to explain

the lack of travel arrangements or plans in the current record

for follow-up medical treatment in the United States given that

Mr. Sabra asserts there is a need for Baby M’s urgent medical

treatment in the United States. See Pl.’s Mem., ECF No. 15-2 at

3. Dr. [REDACTED], one of the medical providers for Baby M,

“[REDACTED].” [REDACTED] Decl., ECF No. 3 at 21 ¶ 8. According

to Dr. [REDACTED], the hospital where Baby M was located “simply

does not have the resources or equipment available to provide

[Baby M’s] medical needs.” Id.; see also P. Sabra Decl., ECF No.

52-2 at 4 ¶ 28 (“The doctors at Al Shifa recommended we get

[Baby M] better treatment in the United States.”). Mr. Sabra

avers that “[w]e just want to bring our daughter [Baby M] home

to the United States, and get her the best medical treatment we

can.” M. Sabra Decl., ECF No. 21-1 at 5 ¶ 15; see also M. Sabra

Suppl. Decl., ECF No. 23-2 at 2 ¶ 12 (“As I stated earlier, [we]

want to bring our daughter home to the United States, and get

her the best medical treatment we can.”).

The current record is devoid of any travel plans to nearby

countries with ample resources and the necessary equipment for

69
Baby M’s urgent medical treatment. See Def.’s Reply, ECF No. 29

at 14. The Secretary correctly points out that Mr. Sabra’s

averment, see M. Sabra Decl., ECF No. 21-1 at 5 ¶ 15, is

“inconsistent” with “the fact that the Sabras have been unable

to demonstrate any plan for safely transporting [Baby M] to the

United States or for any medical follow up that has been

scheduled with medical providers in the United States.” Def.’s

Reply, ECF No. 29 at 14. It is undisputed that the Embassy

offered to assist Mr. and Mrs. Sabra with obtaining permits to

enter Israel for Baby M’s medical treatment there, and that the

Sabra family declined the Embassy’s offer. See, e.g., Woda

Decl., ECF No. 18-3 at 4 ¶ 16; Pl.’s SOMF, ECF No. 21-2 at 5-6.

Mr. and Mrs. Sabra did not apply for Baby M’s humanitarian

(medical) parole with USCIS, which would have been another

avenue to gain entry into the United States for Baby M’s medical

treatment. Joint Status Report, ECF No. 32 at 3-4.

* * *

Under the unique facts and circumstances of this case, the

Court finds that Mr. Sabra has failed to provide sufficient

documentation as proof of Baby M’s birth, identity and

citizenship, as required by the applicable statutes and

regulations. What is more, Mr. Sabra does not address the

Supreme Court precedent that instructs that federal courts may

not declare a person a citizen under its equitable powers. See

70
Def.’s Suppl. Mem., ECF No. 34 at 7 (citing Pangilinan, 486 U.S.

at 883-84); see also Pl.’s Reply, ECF No. 42 at 1-6.

Accordingly, the Court DENIES Mr. Sabra’s motion for summary

judgment and GRANTS the Secretary’s motion for summary judgment

as to Count I. 12

D. The Secretary Is Not Entitled to Summary Judgment
as to Count IV

Mr. Sabra alleges that the Embassy’s failure to issue a

CRBA and U.S. passport to Baby M violates his “rights to free

exercise of religion” under RFRA. Compl., ECF No. 1 at 18 ¶ 78.

The Secretary moves for summary judgment on Mr. Sabra’s RFRA

claim, Def.’s Mem., ECF No. 18-1 at 27-29, but Mr. Sabra does

not move for summary judgment on his RFRA claim, see Pl.’s Mem.,

ECF No. 15-2 at 3-11. 13

12The Secretary’s argument—that Mr. Sabra must exhaust his
administrative remedies under 8 U.S.C. § 1503 before bringing
his claims in this action, see Def.’s Reply, ECF No. 29 at 6-7—
is unavailing. The Secretary cites no controlling authority for
the proposition that a plaintiff must pursue Section 1503 claims
before asserting stand-alone due process claims. See Def.’s
Suppl. Mem., ECF No. 34 at 14. Mr. Sabra may take advantage of
the INA’s enumerated procedures under 8 U.S.C. § 1503. But, as
the master of his complaint, Mr. Sabra did not assert a Section
1503 claim. See generally Compl., ECF No. 1 at 13-18 ¶¶ 50-78.
13The Court rejects Mr. Sabra’s argument—that the RFRA claim “is
not part of what [he] sought to have expedited,” Pl.’s Opp’n,
ECF No. 21 at 7—because the Court adopted in part the parties’
expedited cross-motions for summary judgment briefing schedule
on the claims in the complaint. See Min. Entry of Aug. 2, 2019;
see also Joint Status Report, ECF No. 14 at 1-2 ¶ 4 (“On August
2, 2019, undersigned counsel for Defendant called counsel for
Plaintiff to propose an expedited briefing schedule on the
merits of the Complaint in exchange for Plaintiff agreeing to
71
 Congress enacted RFRA in 1993 to “provide greater

protection for religious exercise than is available under the

First Amendment.” Holt v. Hobbs, 135 S. Ct. 853, 859-60 (2015).

RFRA provides that the “[g]overnment shall not substantially

burden a person’s exercise of religion even if the burden

results from a general rule of applicability,” unless the

government “demonstrates that application of the burden . . .

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling

governmental interest.” 42 U.S.C. § 2000bb–1(a), (b). Any

“person whose religious exercise has been burdened in violation

of [the statute] may assert that violation as a claim or defense

in a judicial proceeding and obtain appropriate relief against

[the] government.” 42 U.S.C. § 2000bb–1(c).

“A person who brings a challenge under RFRA bears the

initial burden of proving that (1) the Government’s policy or

action implicates her religious exercise, (2) the relevant

religious exercise is grounded in a sincerely held religious

belief, and (3) the policy or action substantially burdens that

exercise.” Standing Rock Sioux Tribe v. U.S. Army Corps of

Engineers, 239 F. Supp. 3d 77, 88 (D.D.C. 2017). If the person

withdraw his emergency motion. The parties agreed, and therefore
propose to the Court that the parties file cross motions for
summary judgment on August 12, 2019, and that written
oppositions/replies be waived.”) (emphasis added).
72
establishes a prima facie RFRA violation, then the burden shifts

to the government to demonstrate that the government interest is

compelling, and its action is the least restrictive means. Id.

The Court first analyzes whether Mr. Sabra satisfies his initial

burden, concluding that the evidence demonstrates that the

Embassy imposed a substantial burden on the religious exercise

of Mr. and Mrs. Sabra.

1. Religious Exercise

Congress has defined the term “religious exercise” to mean

“any exercise of religion, whether or not compelled by, or

central to, a system of religious belief.” 42 U.S.C. § 2000cc–

5(7)(A), incorporated by 42 U.S.C. § 2000bb–2(4); see also

Henderson v. Kennedy, 265 F.3d 1072, 1073 (D.C. Cir. 2001)

(explaining that RFRA incorporates the definition from the

Religious Land Use and Institutionalized Persons Act, 42 U.S.C.

§ 2000cc et seq.). Here, Mr. and Mrs. Sabra have expressed their

religious beliefs under Islamic tenets, see Pl.’s Opp’n, ECF No.

21 at 7, and Mrs. Sabra is a practicing Muslim, Pl.’s SOMF, ECF

No. 21-2 at 6.

Mr. Sabra alleges that “[s]ignificant portions of the

unnecessary evidence requested by the Embassy, most notably a

DNA test and photos of [Mrs.] Sabra during pregnancy, conflict

with [Mr. and Mrs. Sabra’s] already articulated sincerely held

religious beliefs.” Compl., ECF No. 1 at 18 ¶ 78. Mr. Sabra

73
asserts that “[c]ontinued insistence on the provision of

additional redundant evidence, requiring [Mr. and Mrs. Sabra] to

choose between providing that evidence or adhering to their

sincerely held religious beliefs, violates RFRA.” Id. The Court

notes that Plaintiff’s counsel stated on the record that

Mr. Sabra has a “strong religious hesitation” to DNA testing,

whereas Mrs. Sabra has an “absolute religious objection” to the

DNA testing of Baby M. Mot. Hr’g Rough Tr. (Aug. 16, 2019) at

104; see also id. at 7 (stating that Mrs. Sabra has “strong

objections based on religion but also as to [Baby M’s] safety”).

With respect to the photographs, Plaintiff’s counsel confirmed

that there are two photographs of Mrs. Sabra during the

pregnancy, but Mr. and Mrs. Sabra refuse to provide those

photographs to the Embassy based on religious objections. Id. at

75. The basis for Mr. and Mrs. Sabra’s objections is that the

photographs are “very personal,” they were “taken in an intimate

in-house setting with just the family,” and “for religious

views, [they] should [not] be seen by anyone outside of the

family ever.” Id.

The Secretary does not address whether the Embassy’s

actions—requesting the submission of photographs showing

Mrs. Sabra pregnant and DNA test results to prove the biological

relationship—implicate Mr. and Mrs. Sabra’s religious exercise.

See Def.’s Mem., ECF No. 18-1 at 28-29. According to the

74
Secretary, “the State Department has applied the relevant

regulation mandating that an applicant for a CRBA and passport

prove their U.S. citizenship by a preponderance of the evidence—

including, under the Department’s interpretation, that a

biological relationship exist between the U.S. citizen parent(s)

and child-applicant.” Id. at 29. Consistent with the State

Department’s interpretation, the Secretary argues that the

Embassy “required [Mr. Sabra] to provide evidence of the parent-

child relationship without any pressure on [Mr. and Mrs.

Sabra’s] to change their behavior in violation of their

religion.” Id. As such, Mr. Sabra, through counsel, asserted

religious objections to any DNA testing and photographs of Mrs.

Sabra to satisfy the State Department’s biological relationship

requirement. Pl.’s SOMF, ECF No. 21-2 at 5-6. The Court

therefore finds that the Embassy’s actions implicate Mr. and

Mrs. Sabra’s religious exercise.

2. Sincerely Held Religious Belief

As noted by the Supreme Court, “[t]o qualify for RFRA’s

protection, an asserted belief must be ‘sincere.’” Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 717 n.28 (2014). The

Supreme Court has emphasized that “[i]t is not within the

judicial ken to question the centrality of particular beliefs or

practices to a faith, or the validity of particular litigants’

interpretations of those creeds.” Hernandez v. Comm’r, 490 U.S.

75
680, 699 (1989). And “[c]ourts generally handle ‘the sincerity

inquiry . . . with a light touch, or ‘judicial shyness.’”

Standing Rock Sioux Tribe, 239 F. Supp. 3d at 90 (quoting

Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 792

(5th Cir. 2012)).

Here, Mr. Sabra argues—and the Secretary does not dispute—

that his and Mrs. Sabra’s religious views are sincere. See,

e.g., Pl.’s Opp’n, ECF No. 21 at 7; Def.’s Opp’n, ECF No. 28 at

23-24. Indeed, the Secretary points out that “[n]owhere in the

RFRA section of the State Department’s moving papers did it

claim that [Mr. Sabra’s] stated beliefs are not sincere.” Def.’s

Reply, ECF No. 29 at 10; see also see Def.’s Mem., ECF No. 18-1

at 27-28. Although the sincerity of Mr. and Mrs. Sabra’s

religious beliefs is unchallenged, Mr. Sabra argues that the

Secretary “challenges whether [his] and [Mrs. Sabra’s] expressed

beliefs are in fact legitimate beliefs under Islamic tenets.”

Pl.’s Opp’n, ECF No. 21 at 7.

Mr. Sabra points to certain statements in the Secretary’s

submissions. See, e.g., Woda Decl., ECF No. 18-3 at 3 ¶ 12 (“I

understand that ACS Chief Greene suggested to the Sabras that a

female officer would be available to review [Mrs.] Sabra’s

pregnancy photos”); id. at 4 ¶ 14 (“I have not previously heard

of a Muslim applicant objecting to DNA testing on this basis”;

“Officer [Darren] Sullivan stated that he has witnessed dozens

76
of DNA tests taken by Palestinian applicants, the majority of

whom are Muslim, and has never seen an applicant articulate a

religious objection”); Decl. of Darren Sullivan (“Sullivan

Decl.”), ECF No. 18-4 at 1 ¶ 2 (“I have witnessed almost 30 DNA

tests taken by Israeli and Palestinian applicants of varied and

diverse backgrounds”; “I have never seen an applicant articulate

a religious objection to participating in DNA testing”); Def.’s

SOMF, ECF No. 18-2 at 3 (“[Mrs.] Sabra . . . did not assert a

religious objection” at the June 12, 2019 interview).

Mr. Sabra contends that “courts evaluating claims brought

under the RFRA ‘accept[] as true the factual allegations that [a

plaintiff’s] beliefs are sincere and of a religious nature.’”

Pl.’s Opp’n, ECF No. 19 at 7 (quoting Kaemmerling v. Lappin, 553

F.3d 669, 679 (D.C. Cir. 2008)). But the D.C. Circuit in

Kaemmerling considered the sufficiency of the complaint under

Federal Rule of Civil Procedure 12(b)(6), conducted a de novo

review, and accepted as true the factual allegations in the

complaint. See Kaemmerling, 553 F.3d at 676-79; accord Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (“To survive a [Rule

12(b)(6)] motion to dismiss, a complaint must contain sufficient

factual matter, accepted as true, to state a claim to relief

that is plausible on its face.” (emphasis added) (citation and

internal quotation marks omitted)). The legal standard for a

Rule 12(b)(6) motion is inapplicable here. In evaluating a

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party’s motion for summary judgment, as here, “[a]ll underlying

facts and inferences are analyzed in the light most favorable to

the non-moving party.” N.S. ex rel. Stein v. District of

Columbia, 709 F. Supp. 2d 57, 65 (D.D.C. 2010) (citing Anderson

v. Liberty Lobby, Inc., 477 U.S. at 247).

Viewing the facts in the light most favorable to Mr. Sabra,

Mr. and Mrs. Sabra’s religious beliefs are sincere. Mr. Sabra

avers that Mrs. Sabra “has in the past refused certain medical

procedures based on her religious beliefs.” M. Sabra Decl., ECF

No. 21-1 at 1 ¶ 7; see also Pl.’s Ex. 1, ECF No. 21-1 at 7

(stating that “[REDACTED]”). Mr. Sabra asserts that “the only

photos taken during [Mrs.] Sabra’s pregnancy are intimate family

photographs which, for religious reasons, the family is

unwilling to provide as she is less than fully attired in these

personal family moments.” Compl., ECF No. 1 at 10 ¶ 43 (emphasis

added). According to Mr. Sabra, the Embassy’s request for DNA

testing and the photographs conflicts with his and Mrs. Sabra’s

sincerely held religious beliefs. Compl., ECF No. 1 at 18 ¶ 78.

In applying the “light touch” for the sincerity inquiry,

Standing Rock Sioux Tribe, 239 F. Supp. 3d at 90, the Court

therefore finds that Mr. Sabra has demonstrated a sincerely held

belief that the Embassy’s request for DNA testing and Mrs.

Sabra’s pregnancy photographs conflict with the religious

exercise of Mr. and Mrs. Sabra.

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 3. Substantial Burden

The Court next considers whether Mr. Sabra demonstrates

that the Embassy’s actions placed a substantial burden on his

and Mrs. Sabra’s religious exercise. See Standing Rock Sioux

Tribe, 239 F. Supp. 3d at 88. “Whether a government action

substantially burdens a plaintiff’s religious exercise is a

question of law for a court to decide.” Singh v. McHugh, 185 F.

Supp. 3d 201, 210 (D.D.C. 2016). “A substantial burden exists

when government action puts ‘substantial pressure on an adherent

to modify his behavior and to violate his beliefs.’”

Kaemmerling, 553 F.3d at 678 (quoting Thomas v. Review Bd. of

Ind. Employment Sec. Div., 450 U.S. 707, 718 (1981)). As the

D.C. Circuit has explained, the “substantial burden” inquiry

“prevent[s] RFRA claims from being reduced into questions of

fact, proven by the credibility of the claimant.” Mahoney v.

Doe, 642 F.3d 1112, 1121 (D.C. Cir. 2011).

The Secretary argues that “[Mr. Sabra] has failed to set

forth a prima facie violation of RFRA as [Mr. Sabra] has not

shown that any aspect of the Sabras’ religious exercise has been

substantially burdened by the Embassy’s request for additional

evidence, which could include, but was not limited to, the

submission [of] photographs of [Mrs.] Sabra pregnant, and/or a

DNA test.” Def.’s Mem., ECF No. 18-1 at 28. The Secretary

contends that “[t]he Embassy’s decision applying the applicable

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regulations was not contrary to law and does not violate RFRA.”

Id. at 29. The Secretary maintains that Mr. Sabra could have

satisfied the State Department’s biological relationship

requirement by complying with “the Embassy’s request for

additional evidence, which could include photographs of [Mrs.]

Sabra while pregnant or a DNA test.” Def.’s Reply, ECF No. 29 at

10.

To support his position, the Secretary relies on

Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008). See Def.’s

Mem., ECF No. 18-1 at 28. In Kaemmerling, the D.C. Circuit

concluded that the plaintiff—a federal prisoner—failed to

sufficiently allege a substantial burden under RFRA when he

sought to enjoin application of the DNA Analysis Backlog

Elimination Act based on his claim that the government’s

sampling, storage, and collection of his DNA without limitations

violated his religious beliefs about the appropriate use of the

“building blocks of life.” 553 F.3d at 679. There, the

plaintiff, an Evangelical Christian, objected on religious

grounds to the government collecting his DNA information. Id. at

673-74, 678-79. The plaintiff, however, did not object to the

collection of any particular DNA carrier, such as blood, saliva,

skin, or hair. Id. at 678. Neither did the plaintiff object to

the Federal Bureau of Prisons (“BOP”) “sweeping up his hair

after a haircut or wiping up dust that contains particles of his

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skin, even though those are acts of collecting bodily specimens

containing DNA, if the BOP does not extract the DNA information

contained in those specimens.” Id.

The D.C. Circuit held that the plaintiff failed to “allege

facts sufficient to state a substantial burden on his religious

exercise because he [could not] identify any ‘exercise’ which

[was] the subject of the burden to which he object[ed].” Id. at

679. Acknowledging that “the government’s activities with his

fluid or tissue sample after the BOP takes it may offend [the

plaintiff’s] religious beliefs,” the D.C. Circuit rejected that

the government had placed a substantial burden on the plaintiff

because the plaintiff alleged “no religious observance that the

DNA Act impede[d], or acts in violation of his religious beliefs

that it pressure[d] him to perform.” Id. at 679. The D.C.

Circuit explained that the government did not substantially

burden the plaintiff’s religious exercise because “[t]he

extraction and storage of DNA information are entirely

activities of the [Federal Bureau of Investigation], in which

[the plaintiff] plays no role and which occur after the BOP has

taken his fluid or tissue sample (to which he does not object).”

Id.

Kaemmerling is distinguishable from this case. Although the

government’s collection and storage of the plaintiff’s DNA in

Kaemmerling did not “pressure [him] to modify his own behavior

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in any way that would [have] violate[d] his beliefs,” id., the

current record contains evidence that the Embassy’s request for

DNA testing and photographs showing Mrs. Sabra pregnant would

“force[] [Mr. and Mrs. Sabra] to engage in conduct that their

religion forbids” or “prevent[] them from engaging in conduct

their religion requires,” Henderson, 253 F.3d at 16. The Court

cannot find that the Embassy did not “condition[] receipt of an

important benefit upon conduct proscribed by [Mr. and Mrs.

Sabra’s] religious faith, or . . . den[y] such a benefit because

of conduct mandated by [Mr. and Mrs. Sabra’s] religious

belief,” Thomas, 450 U.S. at 717–18. The CRBA and U.S. passport

are the governmental benefits here. See id.

In accordance with her religion, Mrs. Sabra declined

certain medical treatments, see, e.g., Pl.’s Ex. 1, ECF No. 21-1

at 7; Compl., ECF No. 1 at 10 ¶ 43, and Mr. Sabra, along with

Mrs. Sabra, objected to DNA testing on religious grounds, Pl.’s

SOMF, ECF No. 21-2 at 6; see also M. Sabra Decl., ECF No. 21-1

at 1-2 ¶ 7 (“This is consistent with . . . my wife’s expressed

belief that she wanted nothing invasive for religious

reasons.”). Mrs. Sabra avers that Vice-Consul Woda “stated that

we would need to submit to a DNA test to prove [Baby M] is [her]

daughter” during the June 12, 2019 interview. P. Sabra Decl.,

ECF No. 52-2 at 7 ¶ 40; see also Woda Decl., 18-3 at 3 ¶ 13 (“I

suggested that [Mrs. Sabra] could also provide a DNA analysis

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establishing a mother-child relationship, which could be the

fastest and simplest method of resolving the issues.”).

According to Mrs. Sabra, DNA testing goes against her religious

beliefs and she “knew it was not required and consider it a

violation of [their] rights.” P. Sabra Decl., ECF No. 52-2 at 7

¶ 41. Although Mrs. Sabra admits that she did not object to the

DNA testing during the interview, Mrs. Sabra avers that she

“felt extremely hostile at that point,” but that she “objected

to the DNA generally, and also that it was risky to [Baby M’s]

health.” Id. at 7 ¶ 42. There is no indication that Mrs. Sabra

had legal representation at that point. Following the June 12,

2019 interview, Mr. and Mrs. Sabra, through counsel, asserted

religious objections. Pl.’s SOMF, ECF No. 21-2 at 6.

With respect to Vice-Consul Woda’s first declaration,

Mr. Sabra argues that Vice-Consul Woda’s averment—that “I

understand that ACS Chief Greene suggested to the Sabras that a

female officer would be available to review [the] pregnancy

photos”—exceeds his personal knowledge. Pl.’s Reply, ECF No. 23

at 9 n.1 (quoting Woda Decl., ECF No. 18-3 at 3 ¶ 12). The

Secretary responds that the Court may consider that statement

because the “State Department would offer this evidence at trial

through the direct testimony of Consular Chief Greene, who has

personal knowledge of this offer, as she was the individual who

communicated it to the Sabras.” Def.’s Reply, ECF No. 29 at 13

83
n.2. The Secretary contends that he “must only demonstrate how

that evidence would be offered in an admissible form at trial.”

Id. (citing Comm. Notes on 2010 Amendment to Fed. R. Civ. P.

56(c)(2)).

“A principal command of Rule 56[(c)(4)] is straightforward:

‘Supporting and opposing affidavits’ on summary-judgment motions

‘shall be made on personal knowledge, shall set forth facts as

would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated

therein.’” Londrigan v. FBI, 670 F.2d 1164, 1174 (D.C. Cir.

1981) (footnote omitted); see also Fed. R. Civ. P. 56(c)(4). And

“[a]lthough the rule’s directive with respect to the

admissibility of an affidavit’s contents on summary judgment has

been liberally construed, its requirement of personal knowledge

by the affiant is unequivocal, and cannot be circumvented. An

affidavit based merely on information and belief is

unacceptable.” Londrigan, 670 F.2d at 1174 (footnotes omitted).

Here, the Secretary does not challenge the personal-

knowledge requirement, and the Secretary concedes that Vice-

Consul Woda’s statement was not made on his personal knowledge.

See Def.’s Reply, ECF No. 29 at 13 n.2. The Court will not

consider Vice-Consul Woda’s statement regarding the Embassy’s

offer to have a female officer view the photographs due to Vice-

Consul Woda’s lack of personal knowledge as to ACS Chief

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Greene’s statements. See Fed. R. Civ. P. 56(c)(4). For the same

reason, the Court will not consider Mr. Sabra’s statements in

his declarations regarding Baby M’s birth, Mrs. Sabra’s meeting

with Vice-Consul Woda, Dr. [REDACTED]’s actions, and Dr.

[REDACTED]’s meeting with Mr. Sabra’s brother. See, e.g., M.

Sabra Suppl. Decl., ECF No. 23-2 at 2 ¶¶ 9-11; M. Sabra Decl.,

ECF No. 21-1 at 2-4 ¶¶ 8-13; Def.’s Reply, ECF No. 29 at 13. It

is undisputed that Mr. Sabra lives in California. E.g., Pl.’s

Reply to Def.’s Counterstatement to Pl.’s SOMF, ECF No. 23-1 at

1 ¶ 1; Def.’s Reply, ECF No. 29 at 13.

In determining whether the Embassy’s request for the DNA

analysis and photographs substantially burdened Mr. and Mrs.

Sabra’s exercise of religion, the Court disregards the

statements contained within the declarations in support of the

Secretary’s motion for summary judgment regarding Mr. and Mrs.

Sabra’s religious objections to the DNA testing. See Woda Decl.,

ECF No. 18-3 at 4 ¶ 14 (“I have not previously heard of a Muslim

applicant objecting to DNA testing on this basis”; “Officer

Sullivan stated that he has witnessed dozens of DNA tests taken

by Palestinian applicants, the majority of whom are Muslim, and

has never seen an applicant articulate a religious objection”);

Sullivan Decl., ECF No. 18-4 at 1 ¶ 2 (“I have witnessed almost

30 DNA tests taken by Israeli and Palestinian applicants of

varied and diverse backgrounds”; “I have never seen an applicant

85
articulate a religious objection to participating in DNA

testing”). As the Supreme Court has explained, “the judicial

process is singularly ill equipped to resolve [intra-faith]

differences” and “it is not within the judicial function and

judicial competence to inquire whether [Mr. and Mrs. Sabra] or

[other Muslim applicants] more correctly perceived the commands

of their common faith.” Thomas, 450 U.S. at 715-16.

While the State Department’s guidance states that DNA

“[t]esting is to verify a relationship is entirely voluntary,”

Def.’s Ex. 3, ECF No. 18-3 at 32, the Secretary contends that

DNA testing may be required “[i]n a case where the biological

relationship between a U.S. citizen and their claimed child is

at issue,” Def.’s Opp’n, ECF No. 28 at 22 (citing Parham v.

Clinton, Civ. A. No. 09-1105, 2009 WL 2870671, at * 9 (S.D. Tex.

Aug. 31, 2009)). Here, there is no question that the Embassy

requested the photographs of Mrs. Sabra while pregnant and DNA

analysis to adjudicate the CRBA and passport applications. See,

e.g., Def.’s Reply, ECF No. 29 at 10; Pl.’s SOMF, ECF No. 21-2

at 4-5. The Court therefore finds that the Embassy’s request for

the submission of DNA testing and photographs to meet the State

Department’s biological relationship requirement constitutes a

“substantial burden” under RFRA.

Applying the burden-shifting analysis, the Secretary must

demonstrate that the Embassy’s request of the DNA testing and

86
photographs furthers a compelling governmental interest by the

least restrictive means. See Singh, 185 F. Supp. 3d at 217. The

Secretary, however, does not address this burden. See Def.’s

Mem., ECF No. 18-1 at 28-29. Rather, the Secretary focuses on

Mr. Sabra’s initial burden to establish a prima facie violation

under RFRA. See id. The Court cannot grant summary judgment to

the Secretary on Mr. Sabra’s RFRA claim because the Secretary

has failed to present evidence that the governmental interest is

compelling or if the Embassy’s actions were the least

restrictive means. There is a genuine dispute as to whether the

Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy

photographs served a compelling interest by the least

restrictive means. Accordingly, the Court DENIES the Secretary’s

motion for summary judgment as to Count IV.

V. Conclusion

For the reasons set forth above, the Court DENIES

Mr. Sabra’s Motion for Summary Judgment as to Counts I-III,

GRANTS the Secretary’s Motion for Summary Judgment as to Counts

I-III, and DENIES the Secretary’s Motion for Summary Judgment as

to Count IV. A separate Order accompanies this Memorandum

Opinion.

SO ORDERED

Signed: Emmet G. Sullivan
United States District Judge
March 9, 2020

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