Immigration enforcement legislation creates problems for U.S. citizens as well as for immigrants. Over the last few years, we have seen growth in our American citizen clientele because of new federal and state documentation burdens enacted under the guise of national security or to combat illegal immigration. The most common refrain we hear is: “I grew up in the U.S. I always thought I was an American but never had anything to show for it and I never needed the proof until now.” Ironically, we hear the same thing about the children of undocumented immigrants who have grown up in the U.S.; only now we are dealing with “undocumented Americans.”
Documentation burdens affecting American citizens include:
WHITI: WHITI stands for the Western Hemisphere International Travel Initiative. WHITI requires U.S. citizens to have one of these types of documents when returning from Canada, Mexico, the Caribbean or Bermuda: passports, enhanced drivers’ licenses, military cards with travel orders, Merchant Marine Cards, I872 American Indian or Enhanced Tribal cards, Trusted Traveler Cards (see below), or in the case of children under 16, original birth certificates, evidence of birth recorded abroad, or naturalization certificates.
The number of Americans holding U.S. passports has been fairly low compared to other countries, but filings have substantially increased in the last two to three years as WHITI was fazed in. Now, more Americans need passports or one of the documents listed above to re-enter the U.S. from travel destinations not far from the U.S. U.S. Customs and Border Protection (CBP) has a useful “Know Before You Go” brochure describing what documents are needed. Keep in mind that the cheaper Enhanced Drivers License only allows for reentry from specified countries, and only some states offer it. A U.S. Passport is more flexible and required for travel from other countries around the world. You can learn about Washington State’s Enhanced Drivers License here. To obtain a passport, see the U.S. Department of State’s website.
TRUSTED TRAVELER PROGRAMS: These are an alphabet soup of programs that let frequent travelers reenter the U.S. through special, faster lines to clear immigration and customs at airports and land borders. An extensive security check is required along with proper I.D. and proof of status. Generally, these programs have a “zero tolerance” policy concerning even the smallest mistakes, like traveling in a car with a prohibited agricultural product like a piece of fruit. Again, specific rules can be found on the CBP website for trusted travelers.
STATE IDENTIFICATION: Drivers licenses or state identification is needed for many purposes, including cashing a check, opening some bank accounts, and enrolling in school. I.D. is required now to board domestic flights, trains and ships, and to pass through interior border check stations. CBP’s authority extends within 100 miles of the Mexican and Canadian borders as well as from our eastern and western seaboards. There is a network of interior border checkpoints throughout the 100-mile perimeter of the U.S. Although I.D. is not always required to pass through these checkpoints, the fact is, border checks frighten many people, immigrants and U.S. citizens alike, and a stop can turn into a real hassle if you are not carrying I.D. Even then, I.D. validity can be contested by CBP. See “ACLU Washington Opposes Border Patrols in Constitution-Free Zone” and “Who Moved My Border? Living in a Constitution-Free Zone.” The New York Times reports similar activities along the eastern seaboard. In Washington State, people complain about border checks at the ferry stop in Anacortes, and in and around the small logging town of Forks, just to name two locations. This is one of many examples where privacy rights and opposition to a national I.D. card conflict with national security needs to check who is coming into the U.S. People who did not have to bother with I.D. before, certainly do now just to travel within the U.S. Because of the REAL ID Act passed in 2005 mandating states issue more secure forms of identification, most states no longer issue drivers licenses or state I.D.s without proof of valid status in the U.S.
Washington State, New Mexico and Utah are the only remaining states that do not require proof of valid status in the U.S. However, because states like Arizona with harsh anti-immigration legislation have pushed people into other states including Washington, our state just tightened up its drivers license requirements to mandate proof of residence if one does not have a social security number. Residence documents will be copied and verified by the Department of Licensing, according to a November 5, 2010 article in The News Tribune.
GOVERNMENT BENEFITS: Over a decade ago, Congress passed the Welfare Reform Act of 1996 that essentially prohibits most forms of government benefits for undocumented immigrants. Many programs exempt lawful permanent residents for the first five years of their residence. Therefore, when applying for Medicare and other state and federal government programs, agencies require proof of citizenship, lawful permanent residence (green cards), or asylee or refugee status.
WORKPLACE COMPLIANCE, GETTING JOBS: Employers have been required since 1986 to document the work permission status of all new hires, including U.S. citizens. Increasingly, state and local governments and federal contracting requirements are forcing employers to use E-Verify, the government’s online database for verifying employment authorization, including that of U.S. citizens. The data is not always reliable. For example, Social Security does not routinely update its information from newly naturalized U.S. citizens causing E-Verify to spit out a temporary “non-confirmation” that must be resolved. Likewise, name changes such as through marriage or court order, as well as identity theft are other causes of “non-confirmations” that can affect U.S. citizens.
MILITARY JOBS, CONTRACTS AND TOP SECURITY CLEARANCES: Proof of U.S. citizenship is often required for these work-related programs.
ARIZONA: Arizona’s draconian immigration law and the copy-cat laws bound to follow means everyone should be carrying valid proof of legal immigration or citizenship status wherever they go simply because the lower standard of “reasonable suspicion,” despite the rule being the subject of litigation right now, makes the likelihood of being questioned about status greater. Even though the authors of the bill state that there should not be racial profiling or there must be some reasonable suspicion of a crime in order to stop people, there is still a higher chance of mistakes being made by law enforcement, because more people will be reviewed for status. For the time being, the most egregious parts of Arizona’s SB1070 have been enjoined by a court. Arizona also enacted mandatory E-Verify that is currently before the U.S. Supreme Court. (See earlier posts, C-Span Broadcast of USA v. Arizona and Arizona Cases Set for Argument).
287(g), SECURE COMMUNITIES, CRIMINAL ALIEN PROGRAMS: Statistics show that U.S. citizens are more likely to get arrested for crimes than immigrants, according to a Cato Institute Report called “Immigrants and Crime: Perception v. Reality.” However, if you are stopped or arrested in a jurisdiction that cooperates with Immigration and Customs Enforcement (ICE), or are taken to a jail where ICE combs the population for immigrants, without proof of valid I.D. or citizenship status, you could receive a detainer for removal (deportation) proceedings. Already, ICE dragnets have scooped up several U.S. citizens, who under pressure of confinement in a detention center, were forced to quickly prove status. Some of the more high profile cases were reported in the Houston Chronicle , NBC Chicago, the StarTribune Minneapolis-St.Paul, and the San Francisco Chronicle.
U.S. citizenship can be established by birth in the U.S. under the 14th Amendment to the U.S. Constitution, and by naturalization, the process of applying to become a U.S. citizen. There is also a scheme for determining U.S. citizenship for those born abroad to one or more U.S. citizen parents, as well as for those adopted by U.S. citizens, or pursuant to Treaty or Conventions (e.g., Jay Treaty, Mariana Islands). Often, proving citizenship through family can turn out to be a genealogy project or a history lesson.
Examples of the kinds of U.S. citizenship issues our firm has handled include the following scenarios:
– Medicare required proof of citizenship when an elderly client needed surgery. She was born abroad to a U.S. citizen father and mother born abroad, but had never needed proof of her citizenship in her entire 65 years. We were able to get a U.S. passport for her after extensive research into the family’s whereabouts, the father’s U.S. military service and childhood records and analysis of the appropriate statutes in effect at the time of her birth.
– A client born abroad had an American born grandfather who eventually settled outside the U.S. However, it was possible to show the client’s father derived citizenship by operation of law from the grandfather, and that the client derived citizenship from her father based on the laws in effect at the time of the father’s birth and the client’s birth with proof of the relatives’ presence in the U.S. during specified periods.
-A woman was born in Europe at a U.S. Military base to a U.S. citizen parent just after World War II concluded. The office where the records from that base were stored burned down. She needed a U.S. passport under WHITI so she could come back after a Caribbean Cruise.
-A client was born in the U.S. at his parent’s home. The mother had birthing assistance from a midwife, since deceased. Like many women of her era, she did not work or have an income of her own, nor bank accounts. Her husband payed all the bills. Although the mother filed a delayed birth certificate with medical records and affidavit of the midwife, initially the U.S. Passport Agency refused to honor the state-issued delayed birth certificate. The ACLU and the State Department recently settled a case, Castelano v. Clinton, involving denied passport applications filed by individuals born in states along the border where midwives are common at birth. The Passport Agency keeps a list of midwives suspected of filing false information, but the settlement now requires that specified procedures be followed in reviewing these cases.
– Certain Filipino war veterans who served in the U.S. military during the period when the Philippines was a territory of the U.S., just before it became an independent nation, sparked years of litigation until Congress finally resolved to grant citizenship to this select group of veterans.
– We have helped members of the military obtain expedited naturalization. There are different programs for past military service and current hostilities, as well as posthumous citizenship, immigration and citizenship benefits for spouses and children of military servicemen and women killed in the line of duty.
– A branch of the military wrongfully refused to honor a base worker’s U.S. passport, lawfully issued by the Passport Agency, based upon the client’s birth in a U.S. territory. The convention ratifying that area as a territory included specified provisions for obtaining U.S. citizenship, under which the client qualified and was awarded a passport. Yet the military would not recognize the decision of Passport Office, which is the only agency that determines passport eligibility. This case represents the difficulties and misunderstandings some citizens face who were not born in the continental U.S., but rather in Guam, Alaska, Hawaii, Puerto Rico, The Northern Mariana Islands and other territories or trusts of the U.S. during specific time periods. Another example is as of October 30, 2010, Puerto Ricans will need new birth certificates since the government invalidated all its birth certificates due to high fraud rates. People born in Puerto Rico must now obtain new, more secure birth certificates.
-We have helped several clients who were born abroad but adopted by U.S. citizens. However, the citizen parents in these cases failed to complete the immigration and citizenship process for their children after they came to the U.S. with green cards, and in some cases will need to naturalize. The children always thought they were Americans. But, in some cases, they will have to naturalize or may no longer qualify if they committed certain disqualifying crimes or lived abroad long enough to jeopardize their green cad status. In other situations, they may just need certificates of citizenship.
The preceding examples are just a few highlights of the many kinds of problems U.S. citizens face nowadays with so many document and identification requirements dictated by different agencies. In sum, there are a myriad of scenarios in which U.S. citizens will need to prove their status and numerous statutes to wade through to analyze who is covered. Unfortunately, most Americans who support immigration enforcement-only legislation don’t understand how these bills affect them as well.