05/15/2014 01:32 pm ET Updated Jul 15, 2014

Citizenship Games

We Americans view U.S. citizenship as almost holy -- as holy as any secular status could be. The Supreme Court described the national sentiment in the 1967 case Afroyim v. Rusk: Our "citizenry is the country and the country is its citizenry." Because citizenship is so fundamental to our collective and individual identities, the Immigration and Nationality Act treats it with extreme respect. For example, a false claim to U.S. citizenship is the immigration law kiss of death. It permanently bars the false claimant from future applications for most types of immigration status.

It is therefore troubling that government attorneys find it appropriate to interpret citizenship statutes differently depending on what reading would lead to a denial of citizenship -- and ultimately deportation. The U.S. Court of Appeals for the Ninth Circuit has correctly labeled this practice "unfair." I recently raised the problem with a Department of Justice attorney, who assured me that the practice amounts to garden-variety "litigation tactics" (the tactics for which lawyers are generally scorned).

I submit that the practice is worse than unfair. It is unethical and undermines clarity and predictability in the law. When the government interprets a citizenship statute, it should adhere consistently to its interpretation, or explain on a principled basis why a prior interpretation was incorrect.

What sounds like abstract theory has harsh real-life consequences. One of our clients in the Boston College Immigration Clinic -- whom I will call "Jack" -- spent almost a year in immigration detention before an Immigration Judge found that he was a citizen, against the government's protestations. During that time, another inmate hanged himself and was carted away on a stretcher, his hand dangling off the side. Needless to say, Jack experienced extreme anxiety while detained.

The issue in Jack's case was whether his father had "legitimated" him, which results in a child's automatic citizenship if and when his father naturalizes. Even as my students and I litigated Jack's case in immigration court, we were unaware that the government had submitted a brief in another case that presented the identical legal issue, following remand from the U.S. Court of Appeals for the Second Circuit. In its 39-page brief, submitted November 25, 2011, the government interpreted the relevant citizenship statute the same way we did. In other words, according to the government's logic, Jack was a citizen. But neither the Immigration Judge nor the clinic knew that the government had adopted our statutory interpretation in one case, while advancing a contrary position in Jack's.

A few weeks after the Immigration Judge concluded that Jack was a citizen, he was finally released from detention. This was on February 28, 2012 -- more than three months after the government filed its brief in the parallel case. At that time, we were still entirely unaware of the brief's existence. I learned of the government's brief, and its conflicting statutory interpretations, only several months later, when lawyers from the National Immigrant Justice Center provided me with a copy.

As the Ninth Circuit's criticism and Jack's experience shows, the government marches to the beat of its own, sometimes arbitrary drum. The result is that U.S. citizens may be held unlawfully in immigration detention and denied the privileges of membership in the national community. The Obama administration has emphasized that it values transparency. The government should show its cards, or, even better, end its citizenship games.