“Don’t it always seem to go
That you don’t know what you’ve got
‘Til it’s gone”
The Joni Mitchell lyrics to Big Yellow Taxi came to mind as I read today’s announcement from the Department of State. The agency published in the Federal Register an interim final rule that eliminated as “obsolete” the Board of Appellate Review (BAR). The BAR — housed in State’s Office of the Legal Adviser — provided U.S. citizens and applicants for U.S. passports a time-honored way to appeal consular officer determinations of loss of U.S. nationality or Passport-Office refusals to issue an American passport. The BAR’s rules of practice were heavely laden with procedural due process protections, such as the right to a hearing, the right to attorney representation and the right to seek reconsideration, all contained in, but soon to disappear from, 20 CFR Sec. 7.1 et seq.
In place of the BAR, State has conferred discretionary authority upon the Bureau of Consular Affairs to review passport refusals and loss-of-nationality determinations. These are the same secretive folks who operate in the shadowy world in which attorney representation at consular interviews is barred, and refusals to share the contents of advisory opinions on questions of law issued to U.S. consular officers are countenanced. I’m not optimistic that we’ll see much due process with Consular Affairs. State has not published any rules of practice or procedure for Consular Affairs to honor. Everything will apparently be decided behind closed doors.
On the other hand, discretionary review at the administrative level is an option not a duty. Passport refusals and the determination that a citizen has lost U.S. nationality can now be directly considered in Federal Court, since there are no longer any administrative remedies to pine for or to exhaust.
Meantime, dear citizens, step up to the bar and raise a toast to BAR for its historic adherence to procedural due process. Alternatively, you have until September 16, 2008 to offer State your comments on its interment of BAR.
May BAR R.I.P.