Even before the President weighed in on Twitter, there’s been substantial discussion about the fate of so-called “ISIS bride” Hoda Muthana, and her apparent desire to return to the United States from Syria. Among other things, Secretary of State Pompeo has declared that she is not a U.S. citizen and will not be admitted back into the United States (even though she was apparently born in New Jersey and grew up in Alabama), and President Trump has asserted that he has “instructed Secretary of State Mike Pompeo, and he fully agrees, not to allow Hoda Muthana back into the Country!”
In the post that follows, I want to take a quick stab at some of the questions that are being asked about the relevant legal authorities here. To make a long story short, it’s not at all clear that Pompeo is correct as to Muthana’s citizenship status; either way, she is entitled to a meaningful opportunity to challenge a governmental determination that she is not a citizen; and if she is a citizen, she almost certainly has a right to return to the United States.
I. Is Muthana an American Citizen?
This, of course, is the big question. The government apparently does not dispute that Muthana was born in the United States. Instead, the argument against her citizenship appears to be that her father was a Yemeni diplomat posted to the United Nations, and that children of officially accredited foreign diplomats born in the United States are not entitled to birthright citizenship under the Citizenship Clause of the Fourteenth Amendment.
As a matter of law, that claim is correct. The key here is a question of fact: Was Muthana’s father in fact a Yemeni diplomat at the time of her birth. Rukmini Callimachi has reported, for example, that her father’s U.N. posting terminated one month prior to Muthana’s birth. There’s a little gray area here; in order to decide whether individuals are entitled to diplomatic immunity, Article 39 of the Vienna Convention on Diplomatic Relations recognizes immunity for a “reasonable period” of time between the end of an assignment and the diplomat’s departure from the country. But that wouldn’t necessarily apply if, as has also been reported, Muthana’s father stayed in the United States and applied for permanent immigration status.
Moreover, Callimachi also reports that, when Muthana previously applied for (and received) a US passport, “her father was asked to produce proof that he had been discharged from his diplomatic post.” Thus, not only does it appear that she was entitled to citizenship at the time of her birth, but that the State Department itself so concluded as recently as 2014. To be sure, the State Department’s prior determination is not necessarily conclusive. But it is deeply suggestive of the conclusion that Muthana’s father was, as a matter of law, no longer entitled to diplomatic immunity at the time of her birth, and so her birth on U.S. soil entitled her to birthright citizenship. At the very least, it’s a matter of some dispute, and not resolved simply by the Secretary of State’s ipse dixit.
II. Can Muthana’s Citizenship Be Revoked?
Even if Muthana was lawfully a citizen, that would not necessarily mean the government lacks the power to revoke her citizenship. But expatriation is limited to a hyper-specific set of cases spelled out at 8 U.S.C. § 1481(a), and none of those categories seem to apply here. Even 8 U.S.C. § 1481(a)(7), which allows expatriation of those who commit treason or other hostile acts against the U.S. government, requires that they be “convicted thereof by a court martial or by a court of competent jurisdiction” before they can be expatriated. Needless to say, that hasn’t happened here.
More to the point, as I’ve written before, the Supreme Court has held, over and over again, that expatriation is not a punishment, but rather a step the government may only take with the voluntary involvement of the (ex-)citizen. That is to say, the Constitution requires that the individual in question voluntarily and overtly relinquish their citizenship. Whatever missteps Muthana may have taken, and whatever crimes she may have committed, it’s hard to see the kind of voluntary intent the Supreme Court has previously required on the facts as they’re currently known.
III. If Muthana Is a Citizen, Does She Have a Right To Return to the United States?
The Supreme Court has held that the government is allowed to revoke passports for national security or foreign policy reasons, so long as it provides due process. But revoking a passport (to deny a right to travel abroad) is not the same thing as refusing the right of a citizen to return home. Although the Supreme Court has never squarely been presented with such a case, it seems likely that, in an appropriate case, the Court would recognize that someone who is lawfully a citizen has the right to return to the United States. At the very least, it should have to follow from the passport cases that, even if the government has the right to prevent a citizen from returning to the United States, it must provide a significant amount of process in such cases.
And that leads to the most important point here: Although the State Department’s own Manual and regulations clearly outline a process for resolving disputes over citizenship, there is no indication that any of those procedures have been followed here. Wish though they might, neither the Secretary of State nor even the President of the United States have the power to determine an individual’s citizenship by fiat. (Imagine if it were otherwise.)
Thus, although there is a factual dispute to be resolved over Muthana’s citizenship, and, if she is a citizen, a legal dispute to be resolved over whether she has a right to return to the United States, perhaps the most important takeaway from all of this is the extent to which the process is going to matter. Of course, folks may have a hard time feeling especially sympathetic to Muthana. But as Justice Frankfurter rightly put it, “the history of liberty has largely been the history of the observance of procedural safeguards.”
So too, here.
Image: Hassan Shibly, lawyer for 24-year-old Hoda Muthana, poses in his office in Tampa, Florida, on February 20, 2019. (Photo by GIANRIGO MARLETTA/AFP/Getty Images)