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Case in Point

Citizen? Prove it.

After 22 years, Manuel Herrera discovers that it’s complicated.

Manuel Herrera, whose family brought him to the U.S. from Honduras in 1976, at Varick Street Immigration Court in New York.
Manuel Herrera, whose family brought him to the U.S. from Honduras in 1976, at Varick Street Immigration Court in New York.

Manuel Herrera 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 grew up between Manhattan and the Bronx, had two children, and worked odd jobs in construction. Even after getting arrested in his early to mid-20s for drugs and serving less than two years in state prison, Herrera never considered his immigration status at risk — until he was picked up by Immigration and Customs Enforcement in June 2017.

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.

“Everything I’ve found out about myself has been since I’ve been here,” Herrera said, in a recent interview at the New York City immigration court. “There are so many things about my family I didn’t know.”

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. And second, through his late grandfather, under what’s called “acquired citizenship.”

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.

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

“It’s a legal status that has a lot of complexities,” said Professor Jacqueline Stevens of Northwestern University, an expert on citizenship and the director of the Deportation Research Clinic. “It’s unreasonable to expect people to know what the legal basis might be for their claims of U.S. citizenship, especially if it’s acquired or derived after being born abroad. There are these arbitrary rules that change in different time frames.” USCIS has a guide to when someone might be a citizen through their parents, based on factors like the year they were born and their parents’ marital 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. Advocates fear more Americans may end up in immigration proceedings under the Trump administration, as he moves to deport more people more quickly.

In response to questions, ICE spokesperson Rachael Yong Yow said in an email that the agency “takes very seriously” any claims that a U.S. citizen is in detention and that they have continued to update their policies to guard against it, most recently in November 2015. “In light of the complexity of U.S. citizenship and nationality law, some individuals don't even know that they are U.S. citizens until well after they are encountered by ICE, and, in fact, it is ICE that often identifies indicia of potential U.S. citizenship of which the person encountered was unaware,” Yong Yow wrote in an email.

Because immigrants facing deportation don’t have a right to representation, many people have to navigate these questions without a lawyer’s help. 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.

Herrera applied to become a U.S. citizen in 1996, alongside his sister. While she was sworn in within six months, Herrera said, he never heard back. His attorney has since found that his application has been open for over two decades. They are arguing in court that USCIS needs to decide on his case as it was when he first submitted — before his criminal convictions — because they had an obligation to respond within a reasonable timeframe.

A spokesperson for USCIS said they could not comment on Herrera’s individual case, but that the average processing time for a naturalization application is around 10 months. “USCIS strives to adjudicate all applications and petitions in a judicious and comprehensive efficiently and expeditiously as possible,” public affairs officer Marilu Cabrera wrote in an email.

His lawyer, Gregory Copeland of the Legal Aid Society, is also claiming that Herrera is already a citizen, through his dad’s parents. 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. Herrera knew his grandfather became a citizen at some point and served in the U.S. military, but didn’t know what it could mean for his own case.

Proving either argument requires historical records and internal USCIS documents. But unlike criminal defendants, immigrants facing deportation have no right to legal discovery, which requires the government to hand over evidence being used against them. What they have is the Freedom of Information Act, a slow-moving, more limited process. In a similar case of someone claiming citizenship while stuck in detention, the 9th Circuit Court of Appeals ruled in 2010 that the government had to proactively provide someone’s “A-File” of immigration records regardless of a FOIA request. But that decision only applies to the Western states under the circuit court’s jurisdiction.

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 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. 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. But immigration judge Thomas Mulligan recognized that Copeland was trying every way possible to uncover Herrera’s true status. “He’s been going crazy with efforts. He’s done everything but do somersaults in front of the building,” Judge Mulligan said in court. “I don’t want this to be a fishing expedition, but at the same time I don’t want someone that might be a U.S. citizen in [removal] proceedings.”

Herrera was denied bond based on his criminal convictions, and will likely be in detention indefinitely until his case is resolved. When his hearing adjourned in April, Herrera — wearing an orange jumpsuit and his wrists shackled to his waist — shuffled slowly back to the bench, and waited to be sent back to Hudson County Correctional Facility.

“It’s hard with a house full of 60-something people when you hear your children crying on the phone, ‘dad when you coming, when you coming?’ There’s a lump in your throat and you try to hold it, to not shed tears around other men,” Herrera said. “So you just go in your cell and keep praying that one day these doors open up and you’ll get up out of here.”

Update 01:25 p.m. 05.25.2018

After reading this story, Anna Edwards—a New York-based attorney who helps people apply for dual citizenship using naturalization and genealogy records—tracked down Manuel Herrera's grandfather's naturalization record in the National Archives. It was from 1954, early enough for Herrera's father to have derived citizenship and to have passed it on to his son. The record also provides other clues about the family's history that may help Herrera fight his case.