For over 40 years, Oscar Olivas lived as a U.S. citizen born in a family home in Los Angeles. His U.S. birth was registered in Los Angeles when he was five months old, and for nearly half a century he built a life in the U.S. as any citizen would – he went to school, registered for selective service, found work, got married, and raised a family. As an adult, he even moved for a time to Mexico without fear, living in Mexicali and commuting daily to work in the U.S, like so many cross-border residents in our region due to the cost of living.
During that time, Oscar’s U.S. citizenship had never been in question. In fact, the federal government consistently confirmed it. It granted “immediate relative” immigrant visas to his mother and his first wife that could have only been approved based on findings he was a citizen. On hundreds of occasions, immigration agents inspected and admitted him to the United States as a U.S. citizen during his daily commute. Mr. Olivas justifiably relied on the government’s assurances, as anyone would.
But in 2010, when he was 45 years old, the government abruptly changed course, questioning his citizenship while processing a visa for his second wife, based on the fact that his Los Angeles birth certificate was registered a few months after his birth. The U.S. Department of State had begun targeting Mexican-American U.S. citizens born to midwives in southern states. Under State Department regulations, Oscar’s birth certificate should have been proof of his citizenship because it was issued within a year of his birth, but the agency targeted his case anyway. After an unrecorded interrogation of his mother behind closed doors at the U.S. consulate in Juarez, State Department investigators extracted a hearsay statement from her that he was born in Mexico. Although she promptly disavowed it, that statement began a decade-long nightmare for Oscar. Based on that hearsay statement, without a Mexican birth certificate or any other admissible evidence that Mr. Olivas was born in Mexico, the government summarily barred him from re-entering the United States, effectively exiling him to Mexico, where he had been living with his wife and U.S. citizen daughter during the visa application process. For three years, despite his repeated pleas, the government failed to provide him with a hearing on the question of his citizenship, as required by law. Oscar and his family remained stranded in Mexico.
We filed suit in June 2014 to seek a determination of Oscar’ citizenship and an order forbidding the government from denying him entry to the U.S. Although the district court correctly ruled that his mother’s statement was hearsay and inadmissible for its truth, it erroneously placed the burden on Oscar to prove the place of his birth nearly a half century after the fact. The Ninth Circuit reversed, concluding that a burden shifting framework applied to Oscar’s case that ultimately required the government to bear the burden to prove by clear and convincing evidence that Oscar is not a U.S. citizen. On remand, with no Mexican birth certificate or admissible evidence that Oscar was born in Mexico, the district court held that the government failed to meet its burden and, as a result, that “excluding [Mr. Olivas] from the United States violates his constitutional rights as a natural-born U.S. citizen.”
Nearly 80 years ago, in words as true today as they were then, the Supreme Court described the importance of U.S. citizenship by stating, “nowhere in the world today is the right of citizenship of greater worth to an individual than it is in this country.” Citizenship based on birth in the U.S. is protected under the 14th Amendment. Given its profound importance, the United States cannot force U.S.-born citizens to bear the burden of re-proving their citizenship at any time at the government’s whim. If the government wants to target its own citizenry, it must prove its case by clear and convincing evidence. In Oscar’s case, the court confirmed this bedrock principle applies even to someone stranded outside the United States. With an estimated 1.5 million U.S. citizens living in Mexico, Oscar’s victory can serve as an example for others turned back at the border facing challenges to their citizenship.
