THE BLOG

Whoops! The Department of Justice Admits That It Misunderstood U.S. Citizenship Law

02/26/2015 04:01 pm ET | Updated Apr 28, 2015

We all know that immigration law is complicated. We all know that human beings make mistakes. What we don't expect is that our government can't figure out who its own citizens are. But time and time again, the government disappoints. The latest culprit is the Department of Justice (DOJ), which employs the most powerful attorneys in the country.

The DOJ has the authority to issue deportation orders. In a recent decision, the DOJ admitted that it has been misinterpreting certain citizenship statutes since 2008. As a consequence, DOJ officers have been incorrectly ordering U.S. citizens deported.

The DOJ's error involved what is known as "derivative citizenship." If a parent naturalizes while a child is under 18, the child automatically becomes a citizen, if some other conditions are met. For example, if a father naturalizes, his out-of-wedlock children must be "legitimated" to derive citizenship.

Unsurprisingly, some families do not know about derivative citizenship. They are unaware that their children became citizens by automatic operation of law. But government lawyers should understand how derivative citizenship works and apply the relevant statutes consistently.

The term "legitimated" is what tripped up the DOJ. In its decision, the DOJ explained that it misread the legal requirements for legitimation to occur -- which means that it issued flawed opinions from 2008 to 2015. This creates troubling policy problems: Will the DOJ communicate its error to affected individuals? How? When? What will the government do about U.S. citizens who already were mistakenly deported? Will the government make any effort to identify them and bring them home?

My immediate instinct on reading the DOJ's decision was to locate and inform affected individuals myself. But it's not so easy, including for attorneys and journalists. The records of immigration proceedings are not public. Only a small minority of the DOJ's decisions are released and available for perusal. Many are delivered only orally. If there is no appeal, there may be no written record.

Thus the government holds the information in its hands, and it remains to be seen what it will do about it. In the meantime, I hope that attorneys and other readers will share the DOJ's decision and reach out to those who might have been misinformed about their citizenship.