Monday, October 8, 2018

Godfrey Muwonge, Foreign Sovereign Immunity Act’s terrorism exception, 28 U.S.C. § 1605A, does not apply to acts by a foreign country against its own citizens

D.C. Circuit dismisses complaint against Iran for lack of subject-matter jurisdiction; Foreign Sovereign Immunity Act’s terrorism exception, 28 U.S.C. § 1605A, does not apply to acts by a foreign country against its own citizens; plaintiffs obtained U.S. permanent residency and U.S. citizenship after the alleged acts

In 2009, plaintiffs, three Iranian émigré siblings and the estate of their deceased brother, brought an action to recover for their injuries sustained from imprisonment, torture, and extrajudicial killing they allegedly suffered at the hands of the Islamic Republic of Iran. As defendants, they named the Islamic Republic of Iran, the Army of the Guardians of the Islamic Revolution (the Revolutionary Guard), and two Iranian leaders, Ayatollah Sayid Ali Hoseyni Khamenei and Mahmoud Ahmadinejad.
During the 1990s, plaintiff Manouchehr Mohammadi and his late brother, Akbar Mohammadi, became leaders in the Iranian pro-democracy movement. The brothers also participated in the 1999 student protest. This resulted in their arrest by the Iranian officials and confinement in Evin prison in Tehran. In the prison, the brothers allegedly suffered brutal physical and psychological abuse and torture. Allegedly, their sisters, Nasrin Mohammadi and Simin Taylor, also suffered severe mistreatment at the hands of the Iranian regime. Akbar died in prison in 2006, while the three surviving siblings had settled in the United States. Furthermore, the plaintiffs alleged that Iranian agents continued to harass them in the United States, threatening them over the phone with murder, refusing to let their parents leave Iran, hacking their computers, and circulating doctored photographs of Nasrin depicted in an immodest light.

The defendants never appeared in court to contest the allegations against them. Plaintiffs filed a motion for entry of default and a default judgment. The district court granted the motion for entry of default; scheduled an evidentiary hearing to establish damages; and directed plaintiffs to submit briefing addressing the basis for the court’s subject-matter jurisdiction.

The district court dismissed plaintiffs’ complaint for lack of subject-matter jurisdiction, and held that the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq., afforded Iran and the Revolutionary Guard immunity from the court’s jurisdiction. Plaintiffs relied on the FSIA’s terrorism exception, 28 U.S.C. § 1605A, but the court rejected their claim because “[t]hat exception abrogates immunity if, among other things, the complaint seeks damages for ‘torture’ or ‘extrajudicial killing’ and the victim was a ‘national of the United States’ at the time of those acts. 28 U.S.C. § 1605A(a).” [Slip op. 2] The district court also held that “plaintiffs failed to qualify as United States ‘nationals’ at the time of the relevant acts in Iran, and that any acts postdating plaintiffs’ relocation to the United States failed to constitute ‘torture’ within the meaning of the statute”. Mohammadi v. Islamic Republic of Iran, 947 F. Supp. 2d at 68 (D.D.C. 2013). Furthermore, the court held that the claims against Kahmenei and Ahmadinejad would be treated as claims against Iran itself and thus would likewise be dismissed based on foreign sovereign immunity. The district court denied plaintiffs’ motion for default judgment.

In response to district court’s denial, plaintiffs filed a motion for reconsideration and an accompanying motion for leave to file a fourth amended complaint, which the district court denied. The plaintiffs appealed.

The United States Court of Appeals for the District of Columbia Circuit affirms the district court’s decision.

The key issue here is whether the Foreign Sovereign Immunity Act’s terrorism exception, 28 U.S.C. § 1605A, applies to acts by a foreign country taken against its own citizens.

Reviewing the matter de novo, the Court agrees with the district court’s conclusion that the terrorism exception to FSIA, 28 U.S.C. §§ 1602, is inapplicable in this case.

“The Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. §§ 1602 et seq., affords the ‘sole basis for obtaining jurisdiction over a foreign state’ in United States courts. Argentine Republic v. Amerada Hess Shipping Corp., 488 U.S. 428, 434 (1989). While the FSIA establishes a general rule granting foreign sovereigns immunity from the jurisdiction of United States courts, 28 U.S.C. § 1604, that grant of immunity is subject to a number of exceptions, see id. §§ 16051607. In their third amended complaint, plaintiffs asserted subject-matter jurisdiction based solely on the FSIA’s terrorism exception, 28 U.S.C. § 1605A.” [Slip op. 3]

“The terrorism exception abrogates immunity in cases in which a plaintiff seeks damages for personal injury or death caused by ‘torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act,’ if ‘engaged in by an official, employee, or agent’ of a foreign country. 28 U.S.C. § 1605A(a) (1). The exception further requires that (i) the foreign country was designated a ‘state sponsor of terrorism at the time [of] the act,’ (ii) the ‘claimant or the victim was’ a ‘national of the United States’ at that time, and (iii) the ‘claimant has afforded the foreign state a reasonable opportunity to arbitrate the claim.’ Id. § 1605A(a)(2).” [Slip op. 3]
“Because Iran has been designated a state sponsor of terrorism since 1984, plaintiffs satisfy the first of those conditions. See Heiser v. Islamic Republic of Iran, 735 F.3d 934, 937 (D.C. Cir. 2013); Roeder v. Islamic Republic of Iran, 646 F.3d 56, 58 n.1 (D.C. Cir. 2011). Plaintiffs, however, fail to satisfy the second condition with regard to the torture and extrajudicial killing allegedly committed against them while in Iran, because none of them was a ‘national of the United States’ at the time of those acts.” [Slip op. 3]

“The terrorism exception assigns the term ‘national of the United States’ the ‘meaning given that term in section 101(a) (22) of the Immigration and Nationality Act’ (INA), 8 U.S.C. § 1101(a)(22). 28 U.S.C. § 1605A(h)(5). The referenced provision of the INA, in turn, generally describes ‘national of the United States’ to mean either a ‘citizen of the United States’ or a ‘person who, though not a citizen of the United States, owes permanent allegiance to the United States.’ 8 U.S.C. § 1101(a)(22).” [Slip op. 4]

Although none of the plaintiffs was a United States citizen between 1999 and 2006, when the central alleged acts of torture and extrajudicial killing occurred in Iran, they argued that they qualified as United States nationals during that time because Manouchehr, Akbar, and Nasrin had personally pledged permanent allegiance to the United States and disclaimed their loyalty to Iran following the “first signs of persecution” in Iran, and that Nasrin exhibited her allegiance by applying for and attaining United States permanent resident status before Akbar’s death in 2006. The Court rejects this argument.

“Plaintiffs’ argument is foreclosed by our precedent. We have held that ‘manifestations of ‘permanent allegiance’ do not, by themselves, render a person a U.S. national.’ Lin v. United States, 561 F.3d 502, 508 (D.C. Cir. 2009). That is because the ‘phrase ‘owes permanent allegiance’’ in 8 U.S.C. § 1101(a)(22) is ‘a term of art that denotes a legal status for which individuals have never been able to qualify by demonstrating permanent allegiance, as that phrase is colloquially understood.’ Marquez-Almanzar v. INS, 418 F.3d 210, 218 (2d Cir. 2005); see Lin, 561 F.3d at 508 (relying on Marquez-Almanzar). The reference in 8 U.S.C. § 1101(a)(22) to a United States national as a person who ‘owes permanent allegiance to the United States’ is descriptive of someone who has attained the status of United States nationality through other statutory provisions; it does not itself set forth an independent basis by which to obtain that status. The language, that is, ‘describes, rather than confers, U.S. nationality.’ Marquez-Almanzar, 418 F.3d at 218; see Lin, 561 F.3d at 508. The conferral of United States nationality must come from elsewhere.” [Slip op. 4]

“The sole such statutory provision that presently confers United States nationality upon noncitizens is 8 U.S.C. § 1408. See Lin, 561 F.3d at 508; Marquez-Almanzar, 418 F.3d at 219. Plaintiffs make no claim that they qualify as United States nationals under that provision, much less that they did so at the time of the alleged torture and extrajudicial killing in Iran. Section 1408 describes four categories of persons who ‘shall be nationals, but not citizens, of the United States at birth.’ 8 U.S.C. § 1408. Those categories generally consist of persons born in, or possessing a specified personal or parental connection with, an ‘outlying possession of the United States,’ id. § 1408(1)(4), presently defined as American Samoa and Swains Island, id. § 1101(a)(29). See Lin, 561 F.3d at 508; see also Hashmi v. Mukasey, 533 F.3d 700, 703 n.1 (8th Cir. 2008) (noting that the category of those who owe ‘permanent allegiance to the United States . . . [is] apparently limited to residents of American Samoa and Swains Island’).” [Slip op. 4-5]

“The courts of appeals to consider the issue thus have overwhelmingly concluded that the status of non-citizen United States nationality is limited to those persons described in 8 U.S.C. § 1408, and that, apart from that provision, an effort to demonstrate ‘permanent allegiance to the United States’ does not render a person a United States national. See United States v. Sierra-Ledesma, 645 F.3d 1213, 122426 (10th Cir. 2011); Abou-Haidar v. Gonzales, 437 F.3d 206, 207 (1st Cir. 2006); Omolo v. Gonzales, 452 F.3d 404, 409 (5th Cir. 2006); Sebastian-Soler v. U.S. Att’y Gen., 409 F.3d 1280, 128587 (11th Cir. 2005); Marquez-Almanzar, 418 F.3d at 21819; Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 972 (9th Cir. 2003); Salim v. Ashcroft, 350 F.3d 307, 30910 (3d Cir. 2003) (per curiam). While one court of appeals has indicated otherwise, see United States v. Morin, 80 F.3d 124, 126 (4th Cir. 1996), we specifically ‘join[ed] the majority’ approach in Lin, 561 F.3d at 508. (And the continuing practical force of the Fourth Circuit’s decision in Morin within that circuit appears unclear. See Fernandez v. Keisler, 502 F.3d 337, 348 (4th Cir. 2007).) Plaintiffs likewise err in relying on certain district court decisions attributing United States nationality to non-citizens based on unique circumstances indicating a ‘permanent allegiance to the United States.’ See Peterson v. Islamic Republic of Iran, 515 F. Supp. 2d 25, 39 n.4 (D.D.C. 2007); Asemani v. Islamic Republic of Iran, 266 F. Supp. 2d 24, 26 (D.D.C. 2003). Those decisions predate ours in Lin.” [Slip op. 5]

Plaintiff also contended that since 2006, two of the plaintiffs became “nationals” within the meaning of 8 U.S.C. § 1101(a)(22). Therefore they could establish jurisdiction under the terrorism exception with respect to events occurring after Nasrin and Simin became United States citizens.

“[…] That argument could have merit, however, only if, after Nasrin became a citizen in 2009, the Iranian regime engaged in conduct against plaintiffs constituting ‘torture, extrajudicial killing, aircraft sabotage, hostage taking, or the provision of material support or resources for such an act.” See 28 U.S.C. § 1605A(a) (1), (a)(2). According to plaintiffs, the Iranian regime continued to ‘torture’ them in the United States by making threatening phone calls, hacking certain of plaintiffs’ online accounts, and disseminating doctored, sexually explicit photographs of Nasrin. We conclude that those alleged acts, while certainly harassing and objectionable, fail to amount to ‘torture’ within the meaning of the terrorism exception.”

“The terrorism exception defines ‘torture’ by reference to the definition of that term contained in the Torture Victim Protection Act (TVPA), 106 Stat. 73, note following 28 U.S.C. § 1350. See 28 U.S.C. § 1605A(h)(7). The TVPA, in turn, defines torture as ‘any act, directed against an individual in the offender’s custody or physical control, by which severe pain or suffering . . . is intentionally inflicted on that individual.’ 28 U.S.C. § 1350 (note). It is doubtful that plaintiffs could be considered to have been in the Iranian regime’s ‘custody or physical control’ after their relocation to the United States.”
“Even assuming otherwise, the challenged acts postdating plaintiffs’ settlement in the United States fail to satisfy the statute’s severity requirement. Plaintiffs’ allegations did not involve physical acts against them. And the nonphysical acts alleged—viz., threatening phone calls made from Iran, hacking of Facebook and email accounts, and circulation of explicit photographs—fall short of anything previously held to constitute ‘torture’ within the meaning of the TVPA. See Simpson v. Socialist People’s Libyan Arab Jamahiriya, 326 F.3d 230, 234 (D.C. Cir. 2003).” [Slip op. 5-6]

The Court then addresses to the “hostage taking” argument within the meaning of the FSIA’s terrorism exception because the Iranian regime refuses to permit plaintiffs’ parents to leave Iran:
“In any event, a prohibition on international travel of the kind alleged by plaintiffs would not constitute ‘hostage taking.’ The statute’s definition of ‘hostage taking’ incorporates the definition from Article 1 of the International Convention Against the Taking of Hostages, see 28 U.S.C. § 1605A(h)(2), and that definition applies to a person who ‘seizes or detains and threatens to kill, to injure or to continue to detain another person,’ Simpson, 326 F.3d at 234 (internal quotation marks omitted). Even if plaintiffs’ parents are barred from traveling abroad from Iran, there is no allegation that they have been ‘seized or detained’ within Iran under any ordinary understanding of those terms. Courts thus have found ‘hostage taking’ in cases involving physical capture and confinement, not restrictions on international travel. See, e.g., Simpson v. Socialist People’s Libyan Arab Jamahiriya, 470 F.3d 356, 358 (D.C. Cir. 2006); Anderson v. Islamic Republic of Iran, 90 F. Supp. 2d 107, 109111, 113 (D.D.C. 2000).” [Slip op. 6-7]

The Court concludes:

“Because plaintiffs fail to satisfy the statutory requirements of the terrorism exception, Iran, as a ‘foreign state,’ is ‘immune from the jurisdiction’ of federal courts. See 28 U.S.C. § 1604. The district court concluded that it also lacked jurisdiction over the Revolutionary Guard because the FSIA defines ‘foreign state’ to include ‘a political subdivision of a foreign state or an agency or instrumentality of a foreign state,’ id. § 1603(a). Plaintiffs have forfeited any challenge to that conclusion by failing to contest it on appeal. See, e.g., World Wide Minerals, Ltd. v. Republic of Kazakhstan, 296 F.3d 1154, 1160 (D.C. Cir. 2002). Plaintiffs also raise no challenge to the district court’s determination that foreign sovereign immunity extended to the individual defendants, Khamenei and Ahmadinejad. Immunity under the FSIA therefore applies to all defendants.”

“In a final effort to establish subject-matter jurisdiction, plaintiffs invoke the Alien Tort Statute, 28 U.S.C. § 1350. The Alien Tort Statute, however, does not confer any waiver of foreign sovereign immunity. See Amerada Hess, 488 U.S. at 43839; Enahoro v. Abubakar, 408 F.3d 877, 883 (7th Cir. 2005); Siderman de Blake v. Republic of Argentina, 965 F.2d 699, 713 n.13 (9th Cir. 1992). The Alien Tort Statute affords jurisdiction for suits against private defendants, not against foreign sovereigns. The FSIA provides the ‘sole basis for obtaining jurisdiction over a foreign state.’ Amerada Hess, 488 U.S. at 439. […]” [Slip op. 7]

The Court affirms the district court’s dismissal of plaintiffs’ third amended complaint for lack of subject-matter jurisdiction.

Case: Mohammadi v. Islamic Republic of Iran, 782 F.3d 9 (D.C. Cir.).


*** Godfrey Muwonge is an attorney in Milwaukee, Wisconsin. Author of “Immigration Reform: We Can Do It, If We Apply Our Founders' True Ideals, Revised Edition” (Univ. Press of America, 2010), which was selected as one of top-10 Books that Drive the Debate (2009) by U.S. Chamber of Commerce's National Chamber Foundation. See

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