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Contextualizing Birth Fraud: Citizenship And Immigration Benefits Adjudication

by Yosef Yacob, JD, LLM, PHD

Problems related to false identification and misuse of birth certificates have been addressed in a number of studies conducted over the last 25 years. [1] In addition to the studies by the Department of Justice, the Office of Inspector General - (OIG)[2] of the Department of Health and Human Services (HHS), conducted two studies focused specifically on birth certificate fraud (Birth Certificate Fraud, OAI-86-02-00001, March 1988, and Birth Certificate Fraud Update - A Management Advisory Report, OEI-02-91-01530, December 1991). The OIG also issued a third report (Citizenship and Alien Verification - Information, September 1996) in which birth certificates were discussed.[3]

Recognition of the problem led to the Congressional effort in the 1996 immigration reform legislation to improve the security of identification of birth certificates. The requirements provided minimum standards to include certification by the issuing agency, use of counterfeit proof paper, the official seal of the issuing agency, and other security features designed to resist tampering, counterfeiting, and duplicating for fraudulent purposes. The standards did not require all States to use a single design but rather accommodate the differences between States in the way birth records are stored and birth certificates are produced.

HHS was to also provide federal grants to the States to develop the capability to match birth and death records, within and among States and to note the fact of death on the birth certificates of deceased persons, beginning first with people born after 1950. Grants were also to be used for pilot projects in five states to demonstrate the feasibility of a system by which State vital statistics offices would receive reports of death from reporting sources within 24 hours of the source acquiring information about a death.[4]

Lastly, the HHS was to submit a report to Congress by September 1997 on ways to reduce the fraudulent obtaining and use of birth certificates, including any use of a birth certificate to obtain a social security card or State or Federal identification or immigration document.[5] Further, the 1996 immigration reform legislation prohibited Federal agencies from prospectively accepting copies of domestic birth certificates that do not conform to standards set forth in regulations.[6]

The purpose of this commentary is to briefly highlight the reason(s) the federal government perceives urgency and continues to advocate adoption of minimum standards by States and local jurisdictions for issuance of United States birth certificates. Rather than conceptual, the problems incident to the issuance of "inaccurate" birth certificates are serious and present a significant threat to the national security of the United States.

The following discussion will attempt to illustrate the problems associated with present practices in the context of benefits adjudication under the Immigration and Nationality Act. Notwithstanding the criticism that intrusive federal regulations seek to coerce states into administering an unfunded federal mandate, it is compelling for state governments to act.

Birth Certificate in Immigration Benefits Adjudication

Birth certificates are the primary documents relied upon by USCIS to adjudicate claimed biological relationships, (parent child and sibling) and / or to establish the identity, age, and/or nationality of the petitioner, applicant, or beneficiary.

False United States birth certificates occasionally presented in an attempt to establish citizenship through birth to confer immigration benefits, are difficult to verify. In contrast, fraudulent certificates [foreign or US] furnished to establish a qualifying relationship are verifiable through blood or DNA tests.

Section 201(b) immigration benefits for an immediate relative, a spouse, child or parent are not subject to availability of visas and are exclusive to petitioning United States citizens. Section 203 (b) immigration benefits to married sons or daughters and/or siblings are likewise reserved exclusively for petitioning United States citizens . [7]

Thus, United States citizenship bestows superior rights relative to, for example, benefits available to a Lawful Permanent Resident, invariably subject to visa availability and/or lengthy waiting periods to confer benefits to eligible family members. Therefore false and fraudulent US birth certificates, in addition to qualifying other wise ineligible persons to confer benefits also provide an incentive to a non-citizen in order to facilitate the immigration process for relatives.[8]

8 C.F.R. 204.1(g) provides that proof of petitioner's status as a United States citizenship may be established by:

  1. A birth certificate that was issued by a civil authority and that establishes the petitioner's birth in the United States;
  2. An unexpired United States passport issued initially for a full ten-year period to a petitioner over the age of eighteen years as a citizen of the United States (and not merely as a non-citizen national);
  3. An unexpired United States passport issued initially for a full five-year period to the petitioner under the age of eighteen years as a citizen of the United States (and not merely as a non-citizen national);
  4. A statement executed by a United States consular officer certifying the petitioner to be a United States citizen and the bearer of a currently valid United States passport;
  5. The petitioner's Certificate of Naturalization or Certificate of Citizenship;
  6. Department of State Form FS-240, Report of Birth Abroad of a Citizen of the United States, relating to the petitioner.

If primary evidence is unavailable, the regulations allow secondary evidence. Any evidence submitted as secondary evidence is evaluated for authenticity and credibility and may include, but is not limited to, one or more of the following types of documents:

  1. certificate with the seal of the church, showing the date and place of birth in the United States and the date of baptism;
  2. Affidavits sworn to by persons who were living at the time and who have personal knowledge of the event to which they attest. The affidavits must contain the affiant's full name and address, date and place of birth, relationship to the parties, if any, and complete details concerning how the affiant acquired knowledge of the event;
  3. Early school records (preferably from the first school) showing the date of admission to the school, the child's date and place of birth, and the name(s) and place(s) of birth of the parent(s);
  4. Census records showing the name, place of birth, and date of birth or age of the petitioner; or
  5. If it is determined that it would cause unusual delay or hardship to obtain documentary proof of birth in the United States, a United States citizen petitioner who is a member of the Armed Forces of the United States and who is serving outside the United States may submit a statement from the appropriate authority of the Armed Forces. The statement should attest to the fact that the personnel records of the Armed Forces show that the petitioner was born in the United States on a certain date.

Forms of Deceptive Birth Certificates

Securing and presenting a fraudulent US birth certificate is less arduous than presenting a fraudulent naturalization certificate, citizenship certificate, US Passport, Report of Birth Abroad, a statement issued by a consular officer, or evidence of status as a permanent legal resident because such claims and or evidence is subject to simple verification through systems maintained by the USCIS or the Department of State. [9]

Delayed [10] , amended [11] , midwife registered [12] , and altered birth certificates usually trigger further inquiry in the form of a request for corroborating secondary evidence to establish the claimed birth in the United States. Unfortunately, the corroborating evidence often consists of equally unreliable delayed baptismal certificates, copies of affidavits from friends or relatives, copies of school and medical records, copies of family photographs, copies of military service records, and/or a copy of a social security card.

Unlike delayed, amended or midwife issued birth certificates, the detection of a stolen or counterfeit birth certificate is inherently difficult. With the exception of detection by highly trained personnel, many counterfeit certificates and sham genuine birth certificates held by imposters go unnoticed. Hence, the theft or loss of official genuine documents presents a serious law enforcement and regulatory challenge.

For example, in July of 2010, the government of Puerto Rico invalidated every birth certificate issued on the island before July 1, 2010, in an attempt to curb rampant fraud and identity theft that officials concluded compromised national security. The U.S. State Department and Homeland Security Department estimate that an astonishing 40 percent of all U.S. Passport fraud cases in recent years involved Puerto Rican birth certificates. As a result the Commonwealth of Puerto Rico began issuing new, more secure certified copies of birth certificates to U.S. citizens born in Puerto Rico.[13]

In April 2007, in what officials feared could have been part of an attempted identity fraud scheme, more than 100 blank birth certificates were stolen from the city of New York's Health Department. [14] In October 2005, the guilty plea from Jean Anderson, 40, of Jersey City, was a the culmination of an extensive investigation by the Federal Bureau of Investigation and the Diplomatic Security Service, into the issuance of fraudulent birth certificates from the Hudson County Office of Vital Statistics (HCOVS). [15]

Copies of certificates prepared on counterfeit or stolen [genuine/authentic form] certificates are extremely difficult to detect, without the raised seals and security features found on originals. When suspected, as corroborating evidence, petitioners typically present a copy of a social security card obtained late in life or a social security number that does not correspond to the place of issuance, and/or are often unable to explain the unavailability of school, military, official, medical, baptismal certificate, or census records.

USCIS adjudicators who must rely upon birth certificates to determine eligibility for benefits admit they fail to detect fraudulent birth certificates prepared on official documents. Adjudicators indicate efforts to detect fraudulent birth certificates often focus only on obvious alterations, such as erasures, smudges, white-out, misspelled words, offset margins, poor seals, dates that do not match, or mismatched fonts.

Problem of Delayed and Midwife Registered Birth Certificates

Despite the recognition that delayed and amended birth registrations, births registered by midwives, and relatives and non-professionals are more likely to be fraudulent, a summary rejection of registered birth certificates, which are issued pursuant to State statutes, present legal and political problems. Such State statutes were enacted because of difficulties many Americans experienced in obtaining birth certificates due to circumstances such as being delivered outside of a formal medical setting.

To accommodate the unique circumstances, the regulation concerning proof of United States citizenship in visa petition proceedings,[16] does not distinguish between certificates issued at the time of birth and those issued at some later date, or those that are amended or registered by midwives or relatives. For many persons who are born in this country and who are therefore bona fide United States citizens, a delayed birth certificate or a registration by midwives may be the only type of birth certificate available to them.

The fraud problems are further amplified due to the lack of uniform standards for the type of evidence required by states to issue a delayed or amended birth certificates. Moreover, not all States include information with delayed or amended birth certificates or the underlying evidence accepted as proof of birth in the United States and upon which delayed registrations were based.

Notably, during the course of the Inspector General's investigation, one State registrar observed a growing problem in which adults and children are being adopted and birth records issued without a record of the adoption and name change proceedings to mirror facts contained in stolen birth certificates of legitimate citizens of the United States. A foreseeable problem in light of the relative ease with which a legal name change or an adult adoption can be secured in the United States.

Similarly, out-of-hospital births attended by midwives have raised concerns. Generally, problems associated with midwife registrations are concentrated along the United States-Mexico border and because of the significant fraud and subsequent convictions some border cities in Texas now require a police officer to be called to the scene shortly after any midwife delivery to verify that the birth actually occurred in the United States.

Even though all states which allow midwives to register births have specific procedures and guidelines in place for such registration, only 17 of those States require information in addition to or different from that required for hospital births. The additional information required to register midwife births in these States can include attendant affidavits, prenatal and/or post-partum records, and notarized statements or other documentation verifying the birth took place and in addition, some States require that midwives provide documentation that the mother lived in the State at the time the birth occurred.

USCIS Regulatory Efforts

In addition to alerting Adjudications Officers of specific broadcasts concerning the theft of authentic birth certificate forms, not unlike other regulatory agencies, the USCIS continues to strive to apply the tools within the legal framework to eliminate the prospect of any form of fraud in the administration of the immigration laws.

The USCIS Adjudicator's field Manual suggests circumstances which may indicate a false claim to U.S. citizenship and requires that when a claim to citizenship is at issue such cases be referred for a personal interview. Such circumstances include but are not limited to:

  • Delayed birth certificate;
  • Delayed baptismal certificate;
  • Unavailability of school records;
  • No census records of the individual;
  • Individual not in the military or registered for the draft;
  • No baptismal certificate when of a faith normally baptized;
  • No official documents (claim based solely on affidavits);
  • Unable to speak English;
  • Illiterate, when of an age group for which illiteracy is uncommon;
  • No knowledge of area of predominant residence in the U.S.;
  • No knowledge of mother, father, and/or brothers or sisters;
  • Siblings and/or parents born abroad;
  • Claims raised abroad and only recently learned of U.S. citizenship;
  • No satisfactory explanation for means of entry into U.S.;
  • Social security card obtained late in life; or
  • The social security card number does not correspond to the place of issuance;

However, there are no further formal guidelines or sustained and comprehensive training provided to those who are entrusted to examine the evidence for fraud detection or any form of training to conduct effective and probing interviews to reliably determine the citizenship status of a claimant.

Board of Immigration Appeals and Federal Court Decisions and Standards of Proof

To penalize United States citizens because they were not born in a formal setting where births are recorded would be unjust. At the same time, as the Inspector General's Report illustrated, there can be little dispute that the opportunity for fraud is much greater with a delayed, amended or birth certificate registered by midwives.

In considering the matter of delayed birth certificates, the Board of Immigration Appeals [Board] in the Matter of Serna,[17] held that the delayed birth certificate presented by the petitioner "… may be treated as prima facie evidence of the facts it relates", but that each case must be decided on its own facts with regard to the sufficiency of the evidence presented as to the petitioner's birthplace. This decision re-affirmed the earlier Herrera [18] decision wherein the Board held that the USCIS "…look behind the instrument itself and consider the supporting matter upon which it was issued."

The Board re-iterated that the petitioner bears the burden of proof in visa petition proceedings and this includes his or her eligibility as a United States citizen to bestow immigration benefits upon an immediate relative.

In reaching its conclusions, the Board relied on a long line of United States Federal Court decisions such as Mah Toi v. Brownell [19] , a case involving a proceeding for the declaration of United States nationality, wherein the court held that a California court order establishing birth in the United States was merely prima facie evidence and that presumptions arising from such evidence are rebuttable, not conclusive. [20]

An individual who is within the United States and claims "a right or privilege as a national of the United States and is denied such right or privilege by any department or independent agency, or official thereof, upon the ground that he is not a national of the United States * * * may institute an action [under 28 U.S.C. 2201] against the head of such department or independent agency for a judgment declaring him to be a national of the United States." [21]

In Patel vs Rice,[22] petitioner asserted he is a United States citizen by virtue of having been born on September 4, 1973, in Chicago, Illinois. In August 1995, petitioner applied for a United States passport claiming United States citizenship by birth. In support of the application, petitioner submitted an Illinois delayed birth certificate, an affidavit from his father and copies of what were represented to be medical records from the Chicago Department of Health from 1973 and 1974. On November 3, 1995, the Department of State issued petitioner a United States passport.

Five years later, in December 2001, petitioner applied for a replacement passport, with accompanying documents, indicating that his original passport was lost. The Department of State denied petitioner's application for a replacement because he did not meet his burden of proving that he was born in the United States and because petitioner's prior passport, issued in 1995, was approved in error.

The district court concluded that the government had "discredited [petitioner's] evidence, and that [petitioner] ha[d] failed to meet his overall burden of proving, by a preponderance of the evidence, that he was born in the United States."

The district court rejected petitioner's argument that his lost passport was prima facie evidence of his citizen ship. The court noted that by statute, a passport is proof of citizenship only "during its period of validity," and that petitioner's passport "was not valid at the time of trial" be cause it had been reported lost over nine years earlier. The district court also doubted "whether issuance of the passport, by itself, would be sufficient to satisfy [petitioner's] burden of per suasion."

The district court also rejected petitioner's argument that the totality of the evidence presented at trial established a prima facie case of petitioner's citizenship. The court first concluded that the weight to be accorded the Illinois delayed birth certificate depended upon the evidence petitioner relied upon to obtain it. The court noted that the certificate "apparently" had been issued based on two documents, a record from a high school in India and an affidavit from a Dr. Patel. Petitioner had been ordered by a magistrate judge to produce the originals of those documents in order to rely upon them at trial, but petitioner had failed to do so. The district court therefore gave "no evidentiary weight to the delayed birth certificate."

Similarly, the district court found that the testimony of petitioner's father and witnesses was "not worthy of credence" and found that the authenticity of the medical records from the Chicago Department of Health, which purported to show that petitioner was treated as an infant in Chicago in 1973 and 1974, was discredited by the testimony of the government's witness, who testified that certain records petitioner submitted "did not exist in 1973", completed in a manner consistent with the clinic's procedures, and one bore the signature of someone who had never been affiliated with the clinic. Because of these discrepancies, the district court concluded that petitioner had failed to demonstrate that the medical records were "genuine and worthy of belief."

Petitioner appealed the district court's decision to the Fifth Circuit. Petitioner contended that the district court erred by denying relief when it was "plausible" petitioner was born in Chicago and no evidence showed he was born elsewhere; giving very little weight to petitioner's prior passport, the testimony of witnesses, and three pages of the Chicago medical records;. The court of appeals found "no error of fact or law" and affirmed. [Cert denied by the US Supreme Court]

In Sanchez Martinez vs INS, [23] the Ninth Circuit provided clarification concerning the standards of proof which apply in cases involving citizenship. In a footnote the courts succinctly stated:

The allocation of the initial burden of proof flows from the nature of the proceeding. In the de novo hearing in district court, the citizen is in the position of a plaintiff seeking a declaratory judgment. [Citations omitted] He or she bears the initial burden of proof. In proceedings before the Service, the citizen is in the position of a defendant. It follows that in these latter proceedings the government bears the initial burden of proof. Woodby v. INS, 385 U.S. 276, 87 S.Ct. 483, 17 L.Ed.2d 362, establishes what this burden must be. We do not decide whether Woodby alters our rule that a citizen seeking a declaration of citizenship in the district court is required to make an initial showing of citizenship by a preponderance of the evidence. Yee Tung Gay v. Rusk, 290 F.2d at 631

The Way Forward

The most recent report, BIRTH CERTIFICATE FRAUD, was presented to the Congress by Inspector General, June Gibbs Brown, in September 2000 [0EI-07-99-00570]. In the report, the Inspector General detailed the same problems and vulnerabilities discussed in previous reports in 1988, 1989, and 1991.[24]

The Report re-iterated that efforts to make birth certificate reliable identity document were complicated by the more than 14,000 versions of legitimate birth certificates currently in existence and the more than 6,000 entities in the United States empowered to issue the documents. The Report further noted the ease with which birth certificates can be obtained [through the mail and via the Internet] and the susceptibility of the document to counterfeit and quick reproduction to serve as breeder documents to secure legitimate identification documents.

Therefore, the inspector General concluded that birth certificates, without corroborating evidence, do not provide conclusive or reliable proof of identity, citizenship, or age and urged agencies to demand supplementary or secondary evidence to establish eligibility for benefits or particularly to establish identity to support the issuance of other identity documents [Social Security Cards, Passports, Drivers License, State Identification Cards, school and military records, etc…].

Given that birth certificates will continue to be central in determining identity, the Inspector General repeated calls to improve and standardize the processes used to issue birth certificates and to apply recent advances in technology to ensure integrity of the document. Specifically, the Inspector General recommended that State vital records offices and other entities that issue birth certificates consider:

  1. reducing the number of entities that issue birth certificates and different types of birth certificates issued;
  2. establishing national standards for security paper;
  3. placing a higher priority on matching death and birth records and the speed at which these records are matched;
  4. reducing opportunities for fraud created as the result of delayed, amended, or midwife birth registrations by placing greater emphasis on the scrutiny of supporting documentation allowed as verification to register delayed, amended, or midwife birth and marking delayed and amended birth registrations accordingly;
  5. expanding resources for the detection and The action must be filed in district court within five years after the final administrative denial of a right or privilege as a national of the United States. 8 U.S.C. 1503.
  6. introducing the use of biometrics (e.g., fingerprints or other individual physical identifier) into the birth certificate process, thus insuring positive links between birth certificates and the people presenting them as proof of identity; and
  7. launching a national campaign to inform the general public and user agencies about the importance of safeguarding vital records and their vulnerability to fraud.
  8. identifying types of documents agencies will accept as proof of identity and program eligibility;
  9. accepting only birth certificates issued on security paper that meets current national standards; using biometrics (e.g., fingerprints, DNA, retinal scans) to assist the agencies in establishing proof of identity;
  10. adopting and distributing guidelines for the detection of fraudulent birth certificates; and
  11. providing continuing training to assist in fraud trends and detection.

Moreover, In contrast, to the minimum standards for verification of identity and legal status, mandated on State governments, and "best practices" as set forth in the Real ID Act, the USCIS regulation does not require any form of verification of state issued birth certificates to establish eligibility to confer benefits on immediate relatives.[25]

Typically, original documents are requested only in those few cases involving suspected counterfeit, altered, or fraudulent instruments. If the petitioner's legal status cannot be confirmed by the petitioner's submitted documentation and cannot be confirmed by USCIS records, the USCIS policy instruct the adjudicator to "note the deficiency" and proceed with the adjudication of the case.[26]

The American Association of Motor Vehicle Administrators (AAMVA), already supports verification of both social security numbers (SSNs) and some birth certificates. These application systems enable States to query the Social Security On-Line Verification (SSOLV) database managed by the Social Security Administration (SSA) and the Electronic Verification of Vital Events (EVVE) system owned and operated by National Association of Public Health Statistics and Information Systems (NAPHSIS). However, while 47 States currently verify SSNs through AAMVA, verification of birth certificates through AAMVA is limited. NAPHSIS is in the process of connecting as many states as possible to a nationwide EVVE network that enables a central system in Washington, D.C., to query the states' vital records networks for federal purposes. Currently 18 states are online with EVVE, with four more and New York City in process of implementation.[27]

Conclusion(s)

In addition to adopting the more realistic strategies outlined by the Inspector General; namely, public awareness and education, accepting only original birth certificates issued on security paper that meets current national standards; improving techniques, guidelines, and protocols for the detection of fraudulent birth certificates, and providing USCIS Adjudicators with comprehensive continuing training to assist in detecting birth certificate fraud cannot be over emphasized.

As noted in the above discussion, federal agencies are mandated to reject for any official purpose a certificate of birth, unless the certificate conforms to the standards promulgated under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 or verifiable by the issuing agency.

Notwithstanding, present immigration regulations allow adjudication for benefits on the basis of "… legible true copies of original documents…" subject to the production of original documents for examination "if an interview is required." [28] The present regulations should be reviewed in light of present law and best practices.

An additional practical measure to secure the reliability of birth certificates is to adopt a regulation which requires registered birth certificates obtained from the State Registrar within two years of the date of the filing the petition for benefits, thus, placing a higher priority on matching death and birth records as recommended by the Inspector general.

According to the Inspector General, matching death and birth information is a strong deterrent to improper use of a genuine birth certificate, delays in matching those records present opportunities for fraud. The expensive security features are of little benefit if agencies continue to rely on copies contrary to best practices and the reasons underlying the legal mandates.

Equally indispensable is the creation, within the USCIS, of a special unit consisting of adjudicators trained in effective and legally proper interviewing techniques; access and means to verify the authenticity of evidence and information furnished by the petitioner; ability to discern the legal and factual issues and to write decisions which are cogent and sustainable on appeal; and as equally important, to initiate proceedings, both criminal as well as regulatory to sanction those who have violated the law.


Footnotes

1 In 1974, the Federal Advisory Committee on False Identification (FACFI), commissioned by the Attorney General of the United States, recognized the criminal use of false identification documents. In its 1976 report entitled The Criminal Use of False Identification, the committee concluded that 100 percent of all Federal fugitives and 80 percent of all drug trafficking are associated with false identification. They also reported that false identification is a major factor in crime, including illegal immigration and flight from justice, and that falsified or stolen vital statistics (i.e., birth certificates) are used as "breeder documents." ("Breeder documents" refer to documents that allow the holder to obtain other documents -- passports, driver's licenses, etc. -- and benefits, such as resident status, Social Security benefits, loans, and other government aid, including Temporary Assistance to Needy Families, Food Stamps, and Medicaid). The Federal Advisory Committee also issued a supplemental report entitled A Plan for Reducing the Abuse of Birth Certification. In 1984, the Laws at Work Task Force, co-chaired by top HHS officials, issued a report entitled A Report of the Task Force on Criminal Implications of False Identification. These two reports on false identification have findings similar to the 1976 report.

2Public Law 95-452 as amended by Public Law 100-504 mandates the OIG to protect the integrity of the Department programs as well as the health and welfare of beneficiaries served by the Department.

3The first inspection identified vulnerabilities in the birth certificate process, the many forms of birth certificates in existence, and issuance procedures. The report recommended both interstate and intrastate standardization of birth certificates, minimum security standards, and improvements in matching death and birth records, and further recommended that States work cooperatively with the Social Security Administration (SSA) to establish procedures to issue Social Security numbers to infants at birth. The second inspection was conducted in response to a request from the Commissioner of the Social Security Administration and summarized SSA's efforts to control birth certificate fraud, which included verification of United States Virgin Island birth certificates and assignment of Social Security numbers at birth. In this study, we found the nature and extent of birth certificate fraud relatively unchanged since 1988 and that major weaknesses continued to hamper the reliability of birth certificates as evidence of eligibility for program services and benefits, even though some incremental improvements had been made. We reported the same problems and weaknesses in our 1996 report.

4Section 656(a) of P.L. 104-208, Division C, "Illegal Immigration Reform and Immigrant Responsibility Act of 1996."

5Section 656(c) of P.L. 104-208, Division C, "Illegal Immigration Reform and Immigrant Responsibility Act of 1996." http://law.justia.com/us/codes/title5/5usc301.html

6The restriction on the acceptance of birth certificates by Federal agencies applies to birth certificates issued beginning 3 years after the regulation is promulgated.

7The English common law rule, under which a person's citizenship was determined by the place of his birth, was known as jus soli. The United States generally follows this rule. Authority for this rule is found in the Fourteenth Amendment to the U.S. Constitution, which states that: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." The Supreme Court endorsed the universality of this rule in U.S. v. Wong Kim Ark 169 U.S. 649, 18 S. Ct. 4561142 L. Ed. 890 (1898). The constitutional rule of jus soli has been construed generously and almost always has endowed all persons born in the United States with United States citizenship.

8A false claim to United States citizenship, if discovered, has several significant consequences. An alien who willfully and knowingly makes a false representation of birth in the United States for the purposed of obtaining a benefit under the Act or any other Federal or State law is inadmissible under section 212(a)(6)(C)(ii)of the Immigration and Nationality Act, 8 U.S.C. § 1182(a)(6)(C)(ii) (2006), subject to exclusion or deportation, and subject to criminal conviction for making a false claim to United States citizenship under 18 U.S.C. § 911 [Matter of Olga BARCENAS-BARRERA, Respondent, File A093 086 418 - Houston, Texas, Decided June 19, 2009, U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals [Cite as 24 I&N Dec. 625 (BIA 2008) Interim Decision #3623].

9Staff at the Immigration and Naturalization Service's Forensics Document Laboratory estimate more than 14,000 different versions of legitimate birth certificates currently exists. The number of different versions is the result of the more than 6,000 entities issuing birth certificates using different formats, types of paper, and different signatures (e.g., State registrars, county registrars, or clerks, mayors, and justices of the peace). Once a birth certificate is issued, it never expires, meaning that security features added to new birth certificates will offer no protection against fraud in previously issued birth certificates. The National Center for Health Statistics reports that 3,957,829 United States births were registered in 1999. The Forensics Document Laboratory provides a wide variety of forensic document analysis and law enforcement services for the Immigration and Naturalization Services and other Federal, State, and local law enforcement agencies. It also develops and presents training programs in the detection of fraudulent documents, assists in identifying fraudulent documents, and acts as a liaison in promoting common efforts to combat international document fraud.

10Delayed birth registration occurs when a certificate of birth is not filed within the time specified by State law. Delayed birth registrations are sometimes the result of unattended home births, midwife births, and other out-of-hospital births.

11Amended birth registration occurs when changes are made to the vital information contained on the original birth registration.

12Midwife birth registrations for out-of-hospital births.

13http://www.masslive.com/news/index.ssf/2010/06/deadline_extended_to_apply_for.html.

14http://www.nytimes.com/2009/04/25/nyregion/25records.html.

15http://www.nytimes.com/2009/04/25/nyregion/25records.html.

168 C.F.R. 204.1(g),

17MATTER OF SERNA, Decided by Board of Immigration Appeals December 6, 1978 [Interim Decision # 2681].

18MATTER OF HERRERA, Decided by Board of Immigration Appeals, September 13, 1971 [Interim Decision # 2096].

19219 F.2d 642 (9 Cir., 1955), cert. denied 350 U.S. 823.

20The same rule was applied in the following cases involving delayed evidence of birth: Casares-Moreno v. United States , 226 F.2d 873 (9 Cir., 1955), a criminal case; Louie Hoy Gay v. Dulles , 248 F.2d 421 (9 Cir., 1955); and Liacakos v. Kennedy , 195 F. Supp. 630 (D. D.C., 1961), deportation matters; Matter of Lugo-Guadiana , 12 I. & N. Dec. 726 (BIA, 1968).

21The action must be filed in district court within five years after the final administrative denial of a right or privilege as a national of the United States. 8 U.S.C. 1503.

22United States Supreme Court 07-337 Sanjay H. Patel, Petitioner v. Condoleezza Rice, Secretary of State Docketed: 9/13/2007.

23Francisco SANCHEZ-MARTINEZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. 714 F.2d 72, CA No. 82-5501. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 15, 1983.

24http://oig.hhs.gov/oei/reports/oei-07-99-00570.pdf.

25Section 202(c)(3) of the Real ID Act requires the states to "verify, with the issuing agency, the issuance, validity, and completeness of each document" that is required to be presented by a driver's license applicant to prove their identity, birth date, legal status in the U.S., social security number and the address of their principal residence.

26I-130 NATIONAL SOP-ADJUDICATIONS - SECTION 5: ADJUDICATIONS MODULE 2.8 4/26/02. http://www.ansarilawfirm.com/docs/USCIS-Standard-Operating-Procedures-for-Adjudicating-I-130-Petitions.pdf.

27http://www.wnd.com/?pageId=122427

28See 8 CFR 204.1(f)(2).


About The Author

Yosef Yacob has a BA in Economics (Honors) Linfield College, JD Northwestern School of Law of Lewis & Clark College, LLM (International Civil Litigation), University of San Diego, PhD in Law (International Law) Osgoode Hall School of Law, York University


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