U.S. citizens don’t need the federal government’s permission to enter and exit the United States. They can’t be forcibly removed from the United States, and they can’t be convicted of entering the United States without the federal government’s permission. Put simply, immigration law’s controls on movement are off-limits to U.S. citizens. But what happens when someone doesn’t know they are a U.S. citizen? The short answer is that things get complicated. For the longer answer, let’s turn to the experience of Javier Garza-Flores.
Born in México in 1974, he always knew that he was a Mexican citizen. Back in 2000, Garza-Flores entered the United States without inspection. After a burglary conviction, he came to the attention of immigration officials (two court decisions about his case are unclear whether this was the Immigration and Naturalization Service that was disbanded in 2003 or the Immigration and Customs Enforcement agency that replaced it). Garza-Flores had no reason to think he had a legal right to remain in the United States, so he admitted he was deportable. In 2003, the federal government in fact deported him.
About a decade later, something changed. Armed with more information about his father, Garza-Flores now had reason to believe that he was a U.S. citizen. Not only that—he now thought he had been a U.S. citizen his entire life. Statistically, it’s true that this is rare. As the U.S. Court of Appeals for the Fifth Circuit explained in one of two recent federal court decisions about Garza-Flores’s situation, “U.S. citizens usually know that they’re U.S. citizens. But not always.” In places like the Río Grande Valley of South Texas, where I grew up, lots of people don’t. Immigration lawyers who practice there are familiar with stories of U.S. citizens who didn’t know they were U.S. citizens. These are as common as the stories of people who aren’t U.S. citizens but always thought that they were. In either situation, what matters isn’t what a person thinks or what their parents tell them. What matters is what the law says.
For Garza-Flores, the relevant law is the law that existed in1974 when he was born. Back then, a person born out of wedlock and outside of the United States would be a U.S. citizen from birth if the mother was not a U.S. citizen and the father was (and the father claimed the child before the child turned 21-years old). Yes, the gender roles were explicit. That’s not all. The father, in addition to being a U.S. citizen at the moment of the child’s birth, also must have been “physically present” in the United States for at least ten years and five of those ten years must have been after the U.S. citizen father turned 14-years-old. If that sounds like a convoluted mess, that’s because it is.
Not surprisingly, many people who meet the requirements don’t know that they do. But, again, it doesn’t matter what someone thinks; what matters is what the law says. So long as a person meets those requirements, they are a U.S. citizen from the moment of birth—what I describe to my students as “moment zero.” Everything they do after that, they do as a U.S. citizen whether they know it or not.
It’s the physical presence requirement that matters a lot to Garza-Flores. Everyone agrees that he meets the other requirements. If Garza-Flores’s father met the physical presence requirements in place in 1974, then Garza-Flores has been a U.S. citizen all his life. And U.S. citizens don’t have to ask the federal government for permission to enter the United States, so they can’t be deported for failing to get the government’s permission. They also can’t be prosecuted for entering the United States in violation of immigration law. That would make Garza-Flores’s 2003 deportation illegal, though understandable. It also matters for what he’s currently facing.
In 2021, the federal government brought criminal charges against Garza-Flores for reentering the United States without the government’s permission after having previously been deported. This a felony punishable by up to 20 years in a federal prison (though most people get sentenced to much less) called illegal reentry. During the prosecution, Garza-Flores, through his lawyer, brought up the possibility that he’s a U.S. citizen, pointing out that if he is indeed a U.S. citizen he can’t be convicted of illegal reentry because it only applies to people who are not U.S. citizens.
Prosecutors said he needed to prove that his father met the physical presence requirement. The federal district court disagreed. The burden of proof isn’t on a criminal defendant to show that they are innocent. “It is elementary that the government must prove each element of an offense in a criminal case beyond a reasonable doubt,” Judge Drew Tipton wrote. United States v. Garza-Flores, 2021 WL 5771866 (S.D. Tex. Dec. 6, 2021). That means that it’s not up to Garza-Flores to show that he is a U.S. citizen. Instead, it’s up to prosecutors to show, beyond a reasonable doubt, that Garza-Flores is not a U.S. citizen.
They failed to do that. Importantly, Garza-Flores didn’t just say he was a U.S. citizen. He presented several documents casting doubt on the government’s claim that he isn’t. Several show that his father was in the United States at various points in his life, all of which are relevant to the physical presence requirement. A baptism certificate from a Catholic Church puts him in Brownsville, Texas, for example, in June 1916, and a World War II draft card puts him in the United States in 1941.
More recently, the Fifth Circuit took up Garza-Flores’s citizenship claim. Garza-Flores v. Mayorkas, No. 20-60748 (5th Cir. June 24, 2022). After losing the criminal prosecution, the federal government tried keeping Garza-Flores from pursuing the citizenship claim. The government says that there is no “genuine issue of material fact” about Garza-Flores’s lack of citizenship. The Fifth Circuit disagreed with the government. The evidence that Garza-Flores presented raises the possibility that his father’s physical presence in the United States met the statutory requirement in place in 1974. That is enough for a federal district court to review Garza-Flores’s citizenship from scratch and declare, once and for all, whether he is a U.S. citizen.
From where I sit, the evidence that the courts described suggests he will be able to show that his father met the physical presence requirements. He was born in 1915, seemingly in Texas, and spent most of his life going back and forth from one country to the other. According to the father’s younger sister, Garza-Flores’s aunt, the father worked as a farmworker. He was married, had five children with his wife, but also had an extra-marital affair that the family knew about from which Garza-Flores was born. Absolutely none of this is unusual. Ultimately, it will be up to a federal district court to decide if the documents that Garza-Flores has gathered show that his father was physically present in the United States for at least ten years with five or more being after he turned 14-years-old. Given that Garza-Flores was born when the father was around 60-years old, there was plenty of time to reach the five- and ten-year marks.
I like this pair of cases because they show, through a single person, how difficult it can be to pin down U.S. citizenship and how much citizenship matters. We often talk about citizenship like it’s obvious: that person is a U.S. citizen, that one isn’t. Lots of times, that just isn’t true. Citizenship is a legal determination that is neither simple nor static. Citizenship law has changed a lot over the years, but the stakes of citizenship determinations have been high for decades. Like Garza-Flores’s situation shows, it might mean the difference between prison time or not, living in the United States or not. If Garza-Flores turns out to have been a U.S. citizen this whole time, then we have an instance in which immigration law clearly came down hard on a U.S. citizen—erroneously and without fault, but that doesn’t undo the effect.
Thanks to Dan Kowalski for bringing the Fifth Circuit decision to my attention.