DOS Update (13 May 2024): Rule Update for Attendance of Third-Parties at Certain Passport Appointments

The U.S. Government published a notice of proposed rulemaking (NPRM) in the Federal Register on July 26, 2023, which is now being adopted as final, going into effect on June 12, 2024. The final rule provides that “attorneys, interpreters, and other third parties may attend certain appointments at passport agencies and centers and at U.S. embassies and consulates overseas to assist the person requesting services (the applicant/requester).” It will apply to “appointments in support of an application for a U.S. passport, either domestically or overseas; to appointments related to a request for a Consular Report of Birth Abroad or a Certificate of Loss of Nationality of the United States (CLN); and other appointments for certain other services offered by American Citizens Services (ACS) units at U.S. embassies and consulates overseas (posts).”

The legal implications of (and perhaps impetus for) this rule update are seen in a recent March 31, 2024 case out of the U.S. District Court for the EDNY. In Ali Salem v. Pompeo, the Plaintiffs, U.S. citizens who were seeking U.S. Passports and CBRA at the U.S. Embassy in Djibouti, appeared for their in-person interview to verify their identity, have their credibility assessed, and to submit their documents for a reliability determination to support their applications. In November 2018, the U.S. Embassy in Djibouti had issued a policy that “prohibited the presence of attorneys during U.S. passport and CRBA interviews, based on claims that attorney participation had interfered with the consular officers’ ability to elicit information needed to adjudicate applications.” A subsequent policy in February 2019 then allowed attorneys to be present, but “continued to restrict their roles.” The February 2019 policy “prohibited attorneys from engaging in legal argument, objecting to a consular officer’s questions, objecting to or insisting on an interpreter in the interviews, summarizing or attempting to clarify an applicant’s answer, and interrupting or instructing the applicant not to answer the officer’s questions.” The Plaintiffs sued, arguing a violation of due process. In January 2020, the judge granted a partial motion to dismiss, leaving two causes of action, which included the Fifth Amendment Procedural Due Process argument. He found that the November 2018 policy violated due process, but reserved as to whether the restrictions in the February 2019 policy also violated due process. During the litigation, and when settlement discussions reached an impasse, the U.S. Department of State notified the court that it had issued the above mentioned NPRM that stated, in relevant part, “A person appearing for a passport appointment at a passport agency or center domestically or a U.S. embassy or consulate overseas or for a [CRBA] appointment overseas may be physically accompanied by a private attorney, interpreter, and/or other third party of their own choice at their own expense to provide assistance.” On November 21, 2023, a Magistrate Judge found that this NPRM only provides for an attorney to be physically present, and does not allow for the attorney to participate. The Defendant, U.S. government, filed objections, to which the Plaintiffs responded.

The District Court, in comparing the February 2019 policy and the NPRM, disagreed with the U.S. government’s arguments that the NPRM is broader than the February 2019 policy, and sufficiently protects a Plaintiff’s due process. The District Court found that the NPRM did not permit Plaintiff the right to be “represented” in embassy interviews and receive full procedural protections that come with that representation. Further, while the U.S. government wanted the court to delay its response until the NPRM ran its course, the court refused, saying that the NPRM itself didn’t adequately address the concerns raised in this case.

The new rule that will be effective in about one month updates the Code of Federal Regulations (see updates to 22 CFR 50, 51, and 71 towards the end of the FRN). The FRN that was published as of today noted a few comments it received during the notice period, including: concerns about third-parties engaging in the unauthorized practice of law when attending these appointments, concerns that the rule does not cover more types of appointments like visa interviews, and the general consistency of this rule across the entire process.