Could you prove you’re a citizen — if officials won’t accept your passport as proof & when DHS stonewalls on FOIA?

In a disturbing story today on The Marshall Project, Christie Thompson writes about Manuel Herrera, who has been in immigration detention in Hudson County, New Jersey, for almost a year. In that time, his lawyer has been fighting to prove he is a U.S. citizen.

Herrera’s parents brought him to the U.S. from Honduras in 1976, when he was 3 months old. His family had green cards that allowed them to enter legally and stay indefinitely…

He is now facing deportation based on three drug convictions and a “possession of stolen property” charge, the most recent of which was in 2002. Thanks to his immigration attorney at The Legal Aid Society in New York, though, Herrera has since discovered he may have been a citizen all along.

There are two ways Herrera might have U.S. citizenship: first, through an application to naturalize that, 22 years later, is “still pending” with U.S. Citizenship and Immigration Services. …

From the perspective of Government Information Watch, there is another aspect of his story that is especially troubling:

Citizenship is often discussed as a black-and-white issue. You were either born here or you weren’t; you either have a U.S. passport or you don’t. The Trump administration plans on asking people if they’re a citizen on the upcoming census. But there are countless cases like Herrera’s of people swept into removal proceedings who don’t know their own status.

U.S. law says Americans should never be held in immigration detention, but research shows it has happened thousands of times. A recent investigation by the Los Angeles Times found ICE released 1,480 people since 2012 because of citizenship claims. Many of these are clear-cut cases of wrongful arrest, a mistaken identity, or officials refusing to accept passports as proof. But more common are cases like Herrera’s, where an immigration attorney’s dive into someone’s history reveals they may have a legal right to be here.

…compiling the records to prove it can be a long and arduous process — especially for those without an attorney.

Herrera only uncovered his possible citizenship claim because he lives in New York, one of the few cities in the country that provides free immigration attorneys to anyone who needs one.

However, unlike criminal defendants, immigrants facing deportation have no right to legal discovery–what they have is the Freedom of Information Act. One can guess how well that has worked…

Herrera first submitted a FOIA request in August 2017. It took the government over seven months to respond. In an April immigration court hearing, an attorney for the Department of Homeland Security said the documents would have come slightly sooner but got “lost along the way.”

When his attorney [Gregory Copeland] finally received the records, he found they contained scant information on his client’s application to naturalize and no information about his father or grandfather.1 The records show ICE had not sufficiently looked into Herrera’s claim of citizenship, Copeland said. He has filed another FOIA, a subpoena, and a habeas petition in Herrera’s case, all trying to get to the bottom of whether Herrera has a right to stay in this country.

In the April hearing, the DHS attorney said releasing documents about Herrera’s father would violate his privacy rights.

1 Under U.S. immigration law, if someone becomes a citizen and has a child under 18, that child may also be a citizen. So if they can prove his grandparents naturalized before his father was an adult, and that his father lived in the U.S. for long enough, that would make his father a citizen and in turn, Herrera.

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