The United States follows the ‘jus soli’ principle in citizenship. A person born in the United States is automatically a U.S. citizen. However, there are instances where one is able to derive US citizenship through the parents. Once a person is granted U.S. citizenship status by the issuance of a Consular Report of Birth Abroad (CRBA) or a U.S. passport, all the rights and privileges of being a U.S. citizen attaches. But what happens if it is subsequently discovered by the State Department that the U. S. citizenship should not have been granted in the first place? Will the citizenship be revoked?
Henry was born in 1980. His father, is a naturalized U.S. citizen and his mother was a resident and citizen of the Philippines. Henry’s mother gave birth to him in the Philippines where his US citizen dad 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 U.S. Embassy in Manila. The CRBA application was approved and Henry was also issued a U.S. 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 college in the US started working for a financial firm. In one of his visits in Manila, he was introduced to Sofia who later became his spouse. Sofia comes from a prominent family and has no interest in moving to the United States. Henry and Sofia were blessed with a son who was born in 2012. Since Henry is a U.S. citizen, he applied for a consular report of birth abroad for his son. In reviewing his child’s CRBA application, the examiners also reviewed the U.S. citizenship status of Henry as well. It was then discovered that Henry was erroneously granted U.S. citizenship. Thereafter, Henry’s own CRBA was cancelled and his U.S. passport was revoked.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 7 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 U.S. passport to Henry.
Transmitting Citizenship
Generally, a child born outside the United States where one or both parents are U.S. citizens may acquire U.S. citizenship at birth as long as certain eligibility requirements are met. One of the important factors to prove is the residence of the U.S. citizen parent prior to the birth of the child. The U.S. 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 eligibility is based on the law that is in effect at the time of the child’s birth.
For those who were born before November 14, 1986, the U.S. physical presence requirement is at least 10 years. While those who were born after November 14, 1986, physical presence requirement for the parents is for 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 U.S. citizenship. Acquisition of birth abroad is governed by the law at the time of the birth of the child claiming U.S. citizenship. In the case of Henry, his US citizen parent needed to have the requisite 10 years of physical presence in order that US citizenship be transmitted to him at the time of his birth in 1980. Since the law at the time of birth (and not the law at the time of application) prevails, the CRBA of Henry can rightfully be revoked as being erroneously issued. 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 Documents
Now that Henry lost his U.S. 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 U.S. passport, Henry could have had the option of being naturalized as a derivative citizen before he turned 18 years old. Or, his U.S. citizen 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 U.S. government could make it up to him through other lawful means. A private bill may also be passed into law making him a U.S. citizen. This maybe what it takes to correct the error.
The facts of Henry’s case above is 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 revoked his U.S. citizenship in a similar manner as that of Henry. He filed a lawsuit before the federal courts asking that he be declared a U.S. 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 U.S. government manifested that it will continue to 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 law@tancinco.com or at (02)721 1963 or visit her website at tancinco.weareph.com/old)
