Kathleen Ashton, et al. v. The Taliban, et al.

The panel below held that the Executive Branch’s recognition of a “notional state” of Afghanistan is dispositive of whether the Taliban and its instrumentalities qualify as a “foreign state” entitled to immunity under the Foreign Sovereign Immunities Act (“FSIA”).1 The question presented is: Whether, in light of the Court’s intervening decision in Exxon Mobil Corp. v. Corporación CIMEX, S.A. (Cuba), 146 S. Ct. 1909 (2026), which confirms that a court—not the Executive Branch—must resolve through ordinary statutory construction whether an entity is a “foreign state” entitled to sovereign immunity, the judgment below should be vacated and remanded so that the Second Circuit must reconsider, under the correct framework, whether the Taliban and its instrumentalities are entitled to immunity under the FSIA. 1 The panel separately held that an entity’s status as an “agency or instrumentality” of a terrorist party under § 201(a) of the Terrorism Risk Insurance Act (“TRIA”) must be assessed as of the date the relevant assets were blocked. As to that holding, Petitioners join in the petition for a writ of certiorari filed by the Havlish petitioners arising from the same judgment. See infra p. 3. As set forth in that petition, the panel’s TRIA holding was in error. This separate petition is filed in support of, and to accompany, that petition, not to duplicate it.