Can a US Born Citizen Be Deported?

Introduction

Immigration law is rarely cut-and-dry, but in this case the answer is clear. A US citizen—whether he or she is born in the United States or becomes a naturalized citizen—cannot be deported. When a US citizen commits a crime, due process and punishment (if convicted) takes place within the American legal system. Even if a US citizen commits a crime abroad and is wanted for arrest internationally, the federal government would prefer to seek justice in the United States rather than deporting the criminal to stand trial in another country.

The exception, however, is if a US citizen renounces their citizenship, then he or she could be deported. Similarly, if a naturalized citizen has their citizenship stripped by the federal government, he or she could be deported. However, neither case would qualify for expedited removal, so the individual would have the opportunity to seek relief against deportation in immigration court.

Types of Citizenship

Before we dive into a discussion of how a US citizen who loses their citizenship could be deported, it helps to understand the difference between a US-born citizen and a naturalized citizen. 

As the name implies, a US-born citizen is typically born within the United States. However, it’s possible for an infant born in a foreign country to be considered a US-born citizen if one or both parents are a US citizen. To qualify, the parent would need to apply for a Consular Report of Birth Abroad of a Citizen of the United States of America (CRBA). CRBA applications are typically administered through the nearest US embassy or consulate.

In contrast, naturalization is the process of bestowing US citizenship to a foreign citizen or national. To qualify for naturalization, the individual must meet the strict requirements set by Congress under the Immigration and Nationality Act (INA).

How Can a US-Born Citizen Lose Their Citizenship?

According to Section 349 of the INA, a US-born citizen may be expatriated (i.e. be stripped of US citizenship) by voluntarily performing one of seven actions with the intention of relinquishing their US nationality:

• Applying for and obtaining naturalization in a foreign country
• Making an oath of allegiance to a foreign country
• Serving in the military of a foreign country as a commissioned or noncommissioned officer, or when the foreign state is engaged in hostilities against the US
• Serving in a foreign government position that requires an oath of allegiance to or nationality of that foreign country
• Making a formal renunciation of US citizenship to a consular officer outside of the US
• Making a formal renunciation of citizenship while in the US, while the country is in a state of war
• Conviction for treason or attempting to overthrow the US government (includes conviction of conspiracy)

Note that under Section 349 of the INA, these conditions only apply if the actions are taken with the intention of relinquishing their US nationality. If the individual doesn’t understand that taking a particular action may result in expatriation, he or she may not necessarily be stripped of their US citizenship.

How Can a Naturalized Citizen Lose Their Citizenship?

Naturalized US citizens are subject to the same expatriation criteria as US-born citizens, plus two more:

• Fraudulently obtaining a green card and/or naturalized citizenship
• Refusal to testify before Congress about subversive acts within 10 years of naturalization

While it’s pretty rare to see a US-born citizen expatriated, the government is much more aggressive about stripping citizenship from a naturalized citizen. This is especially true when the government determines that the individual’s green card and/or naturalized citizenship were awarded as a result of fraudulent information or documentation. 

In either case, whether the individual in question was born in the US or naturalized, stripping their citizenship will require a lengthy process in federal court. After all, the accused is protected by the US Constitution and the right to due process, so he or she deserves the opportunity to present a valid defense against expatriation.

The Deportation Process

Once a citizen has been stripped of their US citizenship, their legal status in the United States is in jeopardy. At this point, the task of deportation would fall to Immigration & Customs Enforcement (ICE), a division of the Department of Homeland Security. If ICE chooses to seek a removal order and deport the individual from the US, here’s what the expatriated individual can expect:

1. Arrest and detainment – ICE or border patrol agents will arrest the individual and detain them in an ICE detention facility or a contracted federal prison.
2. Notice to appear – the individual will receive a notice to appear in immigration court at least 10 days prior to the initial hearing.
3. Bond hearing – if the individual presents a minimal flight risk, he or she may be released on their own recognizance. Otherwise, the court will set a bond requirement, and the individual may be released from detention once they post the bond.
4. Master calendar hearing – this is the first official hearing in the standard removal process. At this hearing, the judge will read the charges, and the accused will affirm or deny the charges. The judge will outline what reliefs (aka defense against deportation) the individual can assert, and then schedule a formal hearing.
5. Merits hearing – the merits hearing is where ICE presents its case against the accused individual, and he or she has the opportunity to present a valid defense as to why they should not be deported from the country. A merits hearing could wrap up in a few hours, or it could take days depending on the complexity of the case.
6. Order of removal – if the judge accepts the defendant’s petition for relief, the case will be dismissed. If not, the judge will issue a removal order to deport the individual.
7. Appeals – the individual may appeal the court’s decision to the Board of Immigration Appeals. In some cases, they may also appeal to the Circuit Court of Appeals, and ultimately the Supreme Court.
8. Deportation – if the appeals courts refuses to hear the appeal or rules against the defendant, then he or she will be deported. Most deportations take place in as little as 2 weeks, though it depends on how quickly ICE can acquire the necessary travel documentation, arrange for travel, and reach an agreement with the receiving country.

Call our Immigration team at(480) 626-2388 to discuss your case today.