(CNN) — A federal judge on Monday denied a request from the family of Hoda Muthana, an American-born woman who left Alabama to join ISIS, to expedite consideration of her case, finding there was not sufficient evidence she would be irreparably harmed.
The Trump administration has argued that Muthana is not a US citizen and is therefore not eligible to return to the country.
The lawyer for her family, Charles Swift, argued that the case was eligible for expedited consideration because Muthana, who is being held in a refugee camp in northern Syria, faced immediate harm. He said her safety and ability to leave the country were precarious, noting that she has had to change camps at least once due to ISIS threats after interviews with the media.
Swift also argued that the US withdrawal of troops from Syria puts her status at risk, but in his ruling Judge Reggie Walton suggested that risk was speculative. He noted there was uncertainty around the terms of the withdrawal, saying he didn’t know when troops would pull out, whether any would remain and whether their departure would create more risk to Muthana.
Justice Department lawyer Scott Stewart claimed that Swift’s arguments were speculative and pointed to Muthana’s access to the media as proof that she’s not in immediate harm’s way. He argued that the situation that Muthana finds herself in is entirely self-imposed as the result of her joining a terrorist organization.
Muthana, now 24, was a college student when she traveled to Syria more than four years ago to join ISIS — eventually marrying three fighters and calling for the killing of Americans on Twitter. In a series of interviews last month from detention in a sprawling refugee camp in northern Syria with her infant son, she expressed deep remorse.
Walton did not rule on the question of Muthana’s citizenship, noting he did not need to address it in the motion for expedited consideration.
Justice Department claim Muthana was never a US citizen
In a filing earlier on Monday, the Justice Department doubled down on a claim that Muthana was never a US citizen because the UN had not notified American authorities that her father was no longer a diplomat until after her birth.
“Muthana is not and has never been a U.S. citizen, and her son likewise is not a U.S. citizen. Settled law applied to the relevant events clearly demonstrates that Plaintiff enjoyed diplomatic-agent-level-immunity until February 6, 1995—after Muthana’s birth,” prosecutors wrote.
In court, Swift argued that it would not make sense for the termination of her father’s diplomatic position and his privileges and immunities to occur at separate times. He suggested that if that “dangerous precedent” were set, it could be taken advantage of by hostile governments. Swift said those governments could dismiss their diplomats but extend their diplomatic immunity, giving them cover to conduct espionage or other illicit activities without fear of reprisal. Walton suggested that such an argument was a good analogy.
Swift also emphasized that an administrative review is not a substitute for a judicial process on Muthana’s citizenship and that she is entitled to due process. Asked about the 2016 letter sent by the State Department informing Muthana that her passport had been revoked, Swift argued that she likely couldn’t have known about it as it was mailed to her home in Alabama and she had already left the US.
Speaking after the hearing, Swift said was “disappointed” by the ruling but “encouraged” by the judge’s comments that in his view “foreshadow” an outcome that will be favorable to Muthana. He reiterated that Muthana is a US citizen and said the loss of citizenship cannot be used as a punishment. Swift said he believed the administration’s position was “very shortsighted thinking.”
With the denial of expedited consideration, the case will adhere to the normal flow of litigation. Swift said after the hearing that the government has 60 days from last week to respond and he expects it to take the full amount of time.
Last month, President Donald Trump tweeted that he had directed Secretary of State Mike Pompeo not to allow Muthana back into the country. Pompeo declared the same day in a statement that Muthana is “not a US citizen and will not be admitted into the United States. She does not have any legal basis, no valid US passport, no right to a passport, nor any visa to travel to the United States.” Pompeo confirmed to NBC News the administration’s position that Muthana was not a citizen because of her father’s diplomatic status when she was born.
Muthana was born in Hackensack, New Jersey, in October 1994, according to her birth certificate, which was included in court documents.
Weeks before her birth, Muthana’s father had stepped down from a post at his country’s mission to the United Nations in New York, relinquishing his diplomatic immunity but maintaining a diplomatic visa, which enabled him to stay in the country with this family legally, according to Swift. On Monday, Swift said Muthana’s mother had been admitted lawfully for permanent residency. Co-counsel Christina Jump explained that her application was pending.
A person born in the United States is entitled to citizenship by virtue of the 14th Amendment, often described as the right of birthright citizenship. But a child born to a diplomat still under the protections of his home country would be considered a citizen of that home country. In the lawsuit, Muthana’s father, Ahmed Ali Muthana, includes a letter from a State Department official in 2004 acknowledging his diplomatic employment ended in September 1994, over a month before her birth.
Lawyers for Muthana’s father argue that the questions around the daughter’s citizenship were already grappled with and answered in 2005 when she was issued a US passport.
Prosecutors do not dispute the timeline laid out in the 2004 letter in their response, but argue that while Muthana may have left his diplomatic post in September 1994, the UN did not officially notify the American mission until February 1995 — the point in time that, they argue, international conventions recognize as the end of a diplomat’s “function.”
Prosecutors also say the State Department issued Muthana a passport “in error.”