Redress for errors of the state department
The United States follows the jus soli principle in citizenship. A person born in the United States is automatically a US citizen. However, there are instances where one is able to derive US citizenship through the parents.
Once a person is granted a US citizenship status by the issuance of a Consular Report of Birth Abroad (CRBA) or a US passport, all the rights and privileges of being a US citizen attach. But what happens if it is subsequently discovered by the state department that the US citizenship should not have been granted in the first place?
Henry was born in 1980. His father was a naturalized US citizen, and his mother was a resident and citizen of the Philippines. Henry was born in the Philippines where his father was temporarily assigned to work. Six years after Henry’s birth, an application for a consular report of birth abroad (CRBA) was filed with the US Embassy in Manila. The CRBA application was approved and Henry was issued a US passport.
When Henry was 10 years old, his grandparents brought him to the United States. He attended middle and high school in New York. He also graduated from college in the United States and started working for a financial firm. In one of his visits in Manila, he met and eventually married Sofia. The couple were blessed with a son who was born in 2012.
Henry applied for a CRBA for his son. In reviewing his child’s application, the examiners also reviewed the US citizenship status of Henry and discovered that he was erroneously granted US citizenship. Thereafter, Henry’s own CRBA was cancelled and his US passport was revoked.
The state department discovered that Henry’s father never had the requisite 10 years physical presence in the United States before the birth of Henry. Henry’s dad only accumulated seven years of physical presence in the United States and this fact was revealed in the CRBA application for Henry. There was no fraud or misrepresentation on the part of Henry’s dad. The state department admitted that it was their error that resulted in the improper issuance of the CRBA and US passport to Henry.
Transmitting citizenship
Generally, a child born outside the United States where one or both parents are US citizens may acquire US citizenship at birth as long as certain eligibility requirements are met. One of the important factors to prove is the residence of the US citizen parent prior to the birth of the child. The US citizen parent must reside or be physically present in the United States for certain minimum time periods prior to the birth of the child in order to “transmit” citizenship. These transmission time periods are enacted by law, and determining the eligibility is based on the law that is in effect at the time of the child’s birth.
For those who were born before Nov. 14, 1986, the US physical presence requirement is at least 10 years. While those who were born after Nov. 14, 1986, the physical presence requirement for the parents is a total of only five years.
The state department officials examining the CRBA of Henry at that time applied the wrong law in approving Henry’s US citizenship. Henry’s US citizen father did not have the requisite 10 years physical presence requirement in order to transmit citizenship to his child.
Lawsuit to return citizenship
Now that Henry has lost his US citizenship, what can he do to gain it back? Henry was prejudiced by undue delay in discovering the error. If he was not initially granted the CRBA and the US passport, Henry could have had the option of being naturalized as a derivative citizen before he turned 18 years old, or his father could also have petitioned him before he turned 21 years old. All these options, which he could have taken advantaged of, are now gone. It remains a question on how the US government could make it up to him through other lawful means. A private bill may also be passed into law making him a US citizen. This may be what it takes to correct the error.
The facts of Henry’s case above are similar to the actual case of Hizam v. Kerry No-12-3810 decided on March 12, 2014, by the United States Court of Appeals, Second Circuit. In that case, Hizam, a national of Yemen, was stripped of his US citizenship in a similar manner as that of Henry. He filed a lawsuit before the federal courts asking that he be declared a US citizen. There is no question that the wrong law was applied by the US state department in approving Hizam’s citizenship. Since this is an error committed by the state department, the US government manifested that it would support other lawful means to provide relief to Hizam, including a private bill in Congress.
It is sad that it may need a congressional act (private bill) to correct this error. That is not always an easy road to take. These days, nothing is really certain. What appears to be may, in fact, not be.
(Atty. Lourdes S. Tancinco may be reached at [email protected] or at (02) 7211963, or visit her website at www.tancinco.com.)
