Human Rights

Landmark Decision Says U.S. Government Has Burden of Proving Citizenship

A panel of Ninth Circuit court judges ruled on November 29 that the U.S. government – not the individual they are charging – has the burden of proving an individual’s citizenship status.

A border patrol agent apprehends an immigrant who illegally crossed the border from Mexico into the U.S. in the Rio Grande Valley sector, near McAllen, Texas, U.S., April 2, 2018. The new 9th Circuit Panel decision could affect future individuals picked up at the U.S.-Mexico borders. (Photo: Jordi Bernabeu Farrús, CC)

The trial is from the shocking case of Oscar Olivas, a legal citizen of the United States who even has his own birth certificate, who was denied entry to the U.S. when he tried to return home after visiting Mexico in 2011.

When he attempted to come across the border, U.S. officials refused him entry. Since this was not an asylum issue but just a citizen returning home whose documents were being questioned, Olivas received a Notice to Appear (NTA) from the border officials. That would ordinarily have automatically forced a hearing before an immigration judge. The U.S. government never filed the NTA with the immigration court for over two years after Olivas was blocked from entry.

No hearing was ever scheduled. Since Olivas was an American and not a Mexican citizen, he ended up stuck in a country where he was not allowed to work.

He called the U.S. government hotline weekly for two years and even visited the border seven separate times to ask about his immigration hearing. He was finally threatened with detention if he kept showing up – just trying to get back home.

Olivas ended up having to sue the local and national directors of the Customs and Border Patrol in 2014 over what happened to him. And even now, after a decision was reached in his favor, he is still in Mexico, waiting.

According to Olivas, his mother, a Mexican national, gave birth to him in Los Angeles County in a private residence, with the assistance of a midwife. Being a foreign citizen, Olivas’ mother was afraid of giving birth in a hospital. Five months after he was born, using papers documenting the birth, Olivas was given a “delayed registration of birth”. He also has a baptism certificate, a Social Security Card, and a state-issued driver’s license which all back up his U.S. birth information.

Despite that, Border Authorities questioned his citizenship information because, according to American Civil Liberties Union representatives on behalf of Olivas, his mother had been forced to say in 2010 that Olivas’ birth certificate was falsified. That happened during Olivas’ application for green cards for his wife and stepson.

The U.S. government agencies involved also continued to do harm to Olivas by not addressing their mistake, not setting up the necessary hearings, and even threatening him with criminal charges if he continued to come to the border – just to get back to the country of his birth.

In a court filing on November 29, a panel of U.S. Ninth Circuit Judges Jacqueline Nguyen and Mary Shroeder, plus U.S.  District Judge Michael Simon, sitting in from the District of Oregon, ruled that Judge William Hayes of the Southern District of California should not have required Olivas to have the burden of proving his citizenship during a bench trial Judge Hayes conducted with Olivas in 2015.

According to the Ninth Circuit panel ruling, the first step in this kind of situation must be that the government provides evidence – not just supposition – that a person is not a citizen. After that, if a petitioner provides significant credible evidence of citizenship (such as Olivas had with his various birth documents), the ruling states that “the burden shifts back to the government to prove alienage by clear and convincing evidence”.

This case has immediate relevance which goes far beyond just the case of Olivas alone. As part of the Trump administration’s continuing drive against Latino U.S. citizens and immigrants alike, it began a practice going back at least to the summer of 2018 in challenging birth certificates presented as proof of citizenship. That happened near the U.S.-Mexico border in southern Texas. As with Olivas, the State Department had been denying passports to some Latinos at the borders, claiming – without any other evidence proving specific cases – that midwives and physicians had falsely issued birth certificates for people who were actually born in Mexico. The State Department alleges these false birth certificates were issued over at least 40 years, between the 1950s and the 1990s.

As of this writing, Oscar Olivas, the innocent victim in this case, is still living in Mexicali, Mexico, with his wife and a 14-year-old daughter who, like him, also is a U.S. citizen.