From US Citizen to Undocumented Immigrant?

A Legal Analysis

This medical doctor’s story went viral some days ago because he just ‘lost’ his US citizenship after 61 years of believing he was a US citizen.

Factual and Legal Background 

He was born in the US in the 1960s. He was then issued a US birth certificate, and has even had US passports issued to him multiple times in the past by the US Department of State. This seemed consistent with the 14th Amendment or the common law principle of ‘jus soli’, the law of the soil, but it was not. The 14th Amendment of the US Constitution states: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside...” (emphasis added).

Under the 14th Amendment everyone born on US soil is a US citizen; including even children of undocumented immigrants, people with ‘no papers’, children of visitors to the US and even international students in the US. It does not matter what a person’s US immigration status is; so long as they give birth in the US, their child acquires US citizenship because they were born on US soil. This law, however, like many others, has an exception. If a person is not subject to the jurisdiction of the United States, then their children will not acquire US citizenship at birth even if the children are born on US soil.

Under international law, foreign diplomats, as well as their spouses and children, enjoy certain immunities. Consequently, children born in the United States to accredited foreign diplomatic officers do not acquire citizenship under the 14th Amendment of the US constitution since they are not “born … subject to the jurisdiction of the United States.”

Accordingly, although this doctor was born in the US, he did not acquire US citizenship at birth because his father (an Iranian) was a diplomat working with the Iranian Embassy in the US.

The Parents, the US Department of State and the Doctor’s Role in the Issue 

First of all the parents of the doctor should not have applied for a US passport for him at birth. Instead, they should have done a voluntary registration for lawful permanent residence. Under that process, the child of a foreign diplomatic officer who is born in the United States voluntarily registers for lawful permanent residence.

According to regulations, “a person born in the United States to a foreign diplomatic officer accredited to the United States, as a matter of international law, is not subject to the jurisdiction of the United States. That person is not a United States citizen under the Fourteenth Amendment to the Constitution. Such a person may be considered a lawful permanent resident at birth.” See 8 CFR 101.3

Had the parents sought proper legal advice, they may have proceeded correctly. 

Additionally, in this doctor’s case, it does not help that the US Department of State also missed and continually missed this legal analysis when they issued his first and subsequent US passports over the last 60 years. Had the doctor himself also hired a US immigration attorney to renew his passport, he likely would have discovered the issue and perhaps taken steps to resolve it.

False Claim to US Citizenship and Consequences in US Immigration Law

For a noncitizen to be inadmissible based on false claim to US citizenship, a US immigration officer must find all of the following elements:

• The noncitizen made a representation of US citizenship;
• The representation was false; and
• The noncitizen made the false representation for any purpose or benefit under the Immigration and Nationality Act (INA) or any other federal or state law.

If a person represents that he is a US citizen in order to obtain a benefit (for example, by applying for a US passport) when they are in fact not a US citizen, it is known as a ‘false claim to US citizenship’. It is a strict law that has very serious immigration consequences. The law only requires falsity without intent, in order to be completed. The US Department of Justice’s Board of Immigration Appeals (BIA) clarified in Matter of Zhang 27 I&N Dec. 569 (BIA 2019) that an alien’s false claim to US citizenship does not need to be knowingly made to give rise to immigration consequences. The BIA reasoned that “the absence of a ‘knowing’ or ‘willful’ requirement for false claims to citizenship under sections 212(a)(6)(C)(ii)(I) and 237(a)(3)(D)(i) of the Immigration and Nationality Act, indicates that there was no congressional intent to include one. As such, the plain language of the law does not require an intent to falsely represent US citizenship.

This means that even if a person honestly believed they were a US citizen when they were not in fact US citizens, they are permanently barred from admission and, in most cases, there is no ‘forgiveness’ or immigrant waiver available. That notwithstanding, there may be a very narrow exception available to some people.

Exceptions

A noncitizen may be exempt from inadmissibility for falsely claiming to be a US citizen because a statutory exception applies. The exception only applies to false claims to US citizenship made on or after September 30, 1996, if the applicant satisfies all of the following requirements: 

• Each parent of the applicant (or each adoptive parent in case of an adopted child) is or was a US citizen, whether by birth or naturalization;
• The applicant permanently resided in the United States prior to attaining the age of 16; and 
• The applicant reasonably believed at the time of the representation that he or she was a US citizen.

On the Issue of Whether this Medical Doctor Can be Deported from the US 

 In Matter of Huang, 11 I&N Dec. 190 (B.I.A. 1965), a case law that addressed a similar issue, the General Counsel essentially reasoned that ‘it would be absurd’ and ‘a vain thing’ to require foreign nationals who are born in the United States under diplomatic status and have never left this country to be deported.

The case further pointed out that aliens in this category, never having been out of the United States, are not subject to deportation, as deportation relates only to aliens who have entered the United States. The case further explained that because the applicants had grown up as a part of the American population, they were not amenable to deportation. 

And so, although this doctor may not be deportable, he may still be inadmissible. Unfortunately, the doctor also does not seem to be eligible for the narrow exception that exists under US immigration law for falsely claiming to be a US citizen. Since the doctor has now applied for lawful permanent residency, we wait to see how the USCIS will resolve the issue. 

Akua Ohenetwene Aboagye, Esq.

AK Poku Law