The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Hoda Muthana was born in 1994 in Hackensack, New Jersey. The United States issued her a passport in 2005, which it later renewed. At the time of the first issuance, the government raised some questions as to the previous diplomat status of her Yemeni father, which were resolved to the government's seeming satisfaction.
In the aftermath of Muthana joining ISIS in Syria in 2014, the position of the U.S. government is not only that Muthana is not only that she is not a U.S. citizen, but that she was never one. Secretary of State Mike Pompeo has stated on the record that she is not a citizen and has no right to enter the United States, which President Trump tweeted conforms to his instructions to Pompeo not to allow her in. As a result, she and her young son are stuck in a Syrian refugee camp even though she is willing to face legal consequences in the United States for her role in ISIS. More details about the timeline can be found here. Her father has filed a complaint on her behalf, which is here.
My coauthor Cassandra Robertson and I have expressed concerns about denaturalizations and denationalizations in the United States for some time. In an article that is forthcoming in the New York University Law Review, we pointed out that the Trump administration's attempts to take away citizenship are unlikely to stop with naturalized citizens. Hoda Muthana's case further confirms our fears.
Steve Vladeck explains some of the legal issues involved in her case here. Jonathan Shaub adds his own analysis, including a discussion of the differences between the U.S. and the U.K. approaches–and how Muthana's case might be different from that of British citizen and alleged ISIS member Shamima Begum—here.
One issue worth highlighting beyond these informative posts is that of equitable estoppel. Hoda Muthana's father's complaint argues that if there had been lingering problems with the father's diplomat status when Hoda Muthana was born, the government had an obligation to say so at the time. Had it done that, the family would have applied for permanent residence for Muthana (as opposed to birthright citizenship) the same way it had done for her older siblings. The complaint states:
The United States definitively represented to Plaintiff that Ms. Muthana was a United States citizen when it issued her a passport.
Plaintiff and his daughter relied on the representation by the United States that his daughter was a United States citizen, and as a result did not take further action to procure or clarify her status in the United States.
Reliance on the issuance of a United States passport, issued by the United States government, was reasonable on the part of Plaintiff and Ms. Muthana.
It would be difficult to deny that these facts meet the three prongs for equitable estoppel (which are definite representation, reliance, and reasonableness of reliance). The Trump administration's run-ins with principles of estoppel in this area are not limited to alleged terrorists. The government has recently sought to denationalize (at times middle-aged) U.S. citizens born near the border to Mexico by claiming that they lied about which side of the border they were born. In one case, a woman born in a farmhouse in the 1970s as far away from the border as Kansas was recently denied a passport because her birth certificate was not deemed sufficient documentation of her citizenship.
The courts need to draw a line as to how long the government has to question the validity of a birth certificate or passport. Birthright citizenship does not cease to exist because someone committed a crime or became inconvenient to the state for any other reason. And if the government wishes to remove citizenship on rare grounds such as treason, it can only do so with the due process of law–rather than fiat by tweet.