This scenario came to me in a dream last night, and I’ve been thinking about it all morning.
Suppose that a couple comes to the US illegally, have a child in the US and raise that child in relative isolation. The child is born at home and no birth record exists. The child goes to school, but not consistently, the family moves around a lot. As a result the child grows up speaking badly accented English and is almost illiterate.
Years later, when the parents (who never legalized their citizenship status), are long dead the child, now a grown man, has a need to prove he is a US citizen or face deportation. All his life the man has worked in the same fringe economy his parents did, basically a cash only economy, he has no drivers license, no id, no bank account, no social security number.
What would constitute proof of citizenship? All I can think of is the man trying to find school records, but that would only show that he has been in the country a long time. Not his status.
Sounds to me similar to any of a million other cases where something happened but was not documented, like if you and I made a verbal contract with no witnesses. It can’t be proven, so the law can’t consider it. The kid in your case is probably totally out of luck.
There may be a problem in deportation in finding a country willing to accept him. How can he, or the US government, prove that he is a citizen of some other country?
In the U.K. schools (and by extension social services and local authorities) usually have the home addresses of children for everything from sending letters to parents to potential child protection issues. If the records of the address are available, he may be able to make a case of naturalisation, given nobody knows where he was born.
I doubt that our hypothetical individual would be up slack alley; The government’s ignorance of the child’s existence is not his fault, especially if he has attending state education. Wiki’s entry on stateless people (which this hypothetical individual is) notes;
*"Principle 3 of the 1959 Declaration of the Rights of the Child asserts that:
"The child shall be entitled from his birth to a name and a nationality."
States bound by the 1989 UN Convention on the Rights of the Child are obligated to implement policies and programs to ensure that children’s families and national authorities can secure citizenship for every child in the country."*
I actually worked on a case kind of in that vein. Elderly woman born very near the US/Mexico border, no birth record, parents obviously long since dead. Didn’t speak English. Had no hard “proof” of her citizenship, but a citizen nonetheless. I don’t recall if she worked, but probably not.
There is actually an INS form for that. We submitted records she attended US schools, census records, and affidavits from individuals we could find that swore under oath that she was born in the US. This was tricky because of course many people who knew her or her parents were long since deceased.
I don’t know how the case ended up because I moved away shortly after filing this case.
Why would he need to prove citizenship? To remove you, the government must show by “clear, unequivocal, and convincing evidence” that you are an alien.
Early school records, along with a personal affidavit and testimony of someone who knew the individual at a young age, can be proof of citizenship, by the way.
Yes to some of those, no to others. I was going from the OP’s premise “has a need to prove he is a US citizen or face deportation.”
I did not know this part. In my dream he was arrested and presumed to be illegal, I guess my dreaming mind just makes its own rules.
Are you saying then that if this man was brought before an immigration judge the state would have to show some evidence that he was illegal? Like having seen him crossing a border? Having proof of citizenship would not be required?
I believe that is correct, yes. A number of cases have held that a lack of evidence of citizenship cannot itself be the basis of proof that the person is not a citizen.
You said you didn’t know how it worked out. I was noting that early school records are officially recognized as proof of citizenship if accompanied by credible testimony.
It would involve basically finding at least two people who could swear on an affidavit that you were who you were and knew you at the time you were born.
I imagine the senerio that the OP proposed happened a lot before the 1940s when government programs became popular.
It would be very difficult to avoid all contact. Even back in the Civil War there were lots of people who tried to hide to avoid the draft and people would call them out for a bonus. Now if the person in the OP was a woman that would eliminate this.
No duh, really? Cuz that’s the exact same thing the lawyer I was working for said!! Just because we submitted the required documentation doesn’t mean her app was successful, and I didn’t want to give the appearance that any case before the INS is a slamdunk as long as you have paperwork.
I’d imagine this to be true, under the “presumed innocent” concept. But if so, it seems that it would be incredibly easy for the great majority of illegal aliens to stay here.
Imagine: A typical foreign-looking person (whatever that means :rolleyes:) is picked up by the INS as an illegal alien. They didn’t actually see him cross the border. He tells them that he was born here, but has no documents to prove it. What can they do to prove that he really is an illegal? What sort of evidence do they use in these cases?
**RP **- I apologize, if I’ve flown off the handle at you. (I know. And the Dopers around the world go, “You don’t say!!”). I assumed your first comment re: documentation was written without reading the thread. (In my defense, it’s not clear what your intent was.) That annoys me. Normally I roll my eyes and get on with things. Today I decided to let fly and be snarkey.
In that frame of mind, I interpreted your second post as snarky.
Everytime I think I shouldn’t post something, I regret not listening to the voice in my head. Maybe I should change my user name to hot_head.
Now, what am I going to do with all this left over indignation…
niblet_head, no problem, I could have been clearer. You’re absolutely right that with INS, even following the regulations is no guarantee.
The work I’ve done in immigration has not been in defending immigrants at removal proceedings, so I can’t say for sure. But here’s my best guess:
First of all, we’re talking about one very small fraction of the entire pool of removals.
The question isn’t relevant to visa overstays, people who have already been caught entering illegally at some point, or who are caught by Border Patrol in the act of entry. Those people account for the vast majority of the people removed by DHS.
Then, off that group, you subtract the people that are removed because of some context that makes their status clear (e.g. they work and live with a bunch of other undocumented migratory farmworkers) or for whom there is obvious evidence of their non-citizenship (including the testimony of other aliens). Of those, you’re only talking about those who challenge their removal. A vast majority choose voluntary departure or stipulated removal to avoid having to stay in detention and avoid the sanctions imposed for being formally removed. Then, of the remaining sliver, this problem would arise with those who choose to lie (potentially compounding their problems), and are sophisticated enough to know both that they can potentially successfully lie and enough about the US to make up, on the spot, a detailed and false life history.
In short, you’re talking about a case that just doesn’t arise very often. If it were an important case, say anti-terrorism, the government would probably investigate and try to come up with evidence here or in the country of alleged origin. But reading the reported cases, there are definitely people who aren’t removed because the government cannot prove they are aliens. Presumably some of these people are actually aliens.