Introduction
Today Petros commenting here asked the following question:
“At the end of the day, nobody has a statutory right (with the possible exception of U.S. citizens) to enter the United States.”
I know border guards have asked me questions about my intention for returning to my own country when I was still an American, even asking where I was staying. These question imply that as US passport holder, I didn’t have a right to enter the country. Still I was never refused. Are there cases where someone who presents a valid US passport is refused entry? How about if they present a valid US birth certificate as proof of citizenship?
I suggest the following answers to Petro’s two questions:
1. Those presenting a valid (meaning unexpired) U.S. passport should not be refused entry to the United States; and
2. Assuming the right of a U.S. citizen to enter the USA, a U.S birth certificate should prove U.S. citizenship (absent renunciation) and therefore allow for entry to the USA. For that matter (as described in the post below) an expired U.S. passport should also be proof of U.S. citizenship. However, without an unexpired U.S. passport entry to the USA will not be “friction free”.
The complicating factor is INA 1185 -a law for the express purpose of controlling the travel of U.S. citizens – U.S. citizens are required to leave or enter the USA on an unexpired U.S. passport. The specific language of the law includes:
8 U.S. Code § 1185 – Travel control of citizens and aliens
Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.
In 2013 Eric wrote a brilliant post explaining the history of the the rule requiring that U.S. citizens enter and leave the United States on a valid U.S. passport.
Bottom Line:
Although U.S. citizens may have a constitutional right to enter the United States, the lack of a unexpired U.S. passport may make it difficult.
Consider the following thought experiment:
Two Canadian citizens live in Canada and have Canadian passports. One of the two citizens is also a U.S. citizen without a current U.S. passport or with no U.S. passport. Incredibly the person who is ONLY Canadian can enter the United States with only his Canadian passport. But, the other person is in violation of U.S.C. 1185 which requires the U.S. citizen to enter the United States with a valid U.S. passport. Sound incredible? Yes it is.
I discuss this in the following podcast:
The podcast is based on this recent post on my blog at citizenshipsolutions.ca