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An American hero who found out, after 50 years, he wasn’t a citizen — and he might be a criminal

Mario Hernandez never got naturalized. Now the federal government may not let him.
Mario Hernandez never got naturalized. Now the federal government may not let him.
Mandel Ngan/AFP/Getty

UPDATE: On the afternoon of May 21st, Mario Hernandez won his appeal of his application for US citizenship, and was immediately sworn in as a United States citizen. However, he can still be charged for voter fraud by prosecutors in Florida.

Mario Hernandez entered the country in 1965, at the age of 9. He's always been a legal immigrant in the United States — when he and his parents arrived from Cuba, they received "humanitarian parole," which gave them indefinite legal status and Social Security numbers. He got his drivers' license legally, married his wife legally, and worked in the private sector legally.

But as the New York Times reported this week, there was a catch: When Hernandez enlisted in the US Army, went to work for the federal government, and voted in 10 different elections, he was actually doing so illegally — and no one realized it, not even Hernandez.

Hernandez had never technically become a citizen. His family had become eligible for green cards a year after they'd entered the country, but his parents never got around to applying — for themselves or for him.

And he didn't have any idea that was the case until earlier this year, when he went to apply for a passport and realized he didn't have any naturalization documents.

But neither did anyone else: 10 different federal and state agencies approved Hernandez to do things that only a citizen is legally supposed to do. None of them caught the error. When Hernandez finally realized the problem and applied for citizenship, the federal agent forgot to bring his case file to the interview — then denied his application on legally murky grounds.

Only once the case began to get media attention did United States Citizenship and Immigration Services flip-flop and approve him for citizenship. And there's still a chance he could be charged with voter fraud in criminal court.

The whole saga shows how mind-bogglingly complex the immigration system is — and how poorly most government officials understand it themselves.

The complexities of legal immigration

Hernandez' parents had indefinite legal status, so they never needed green cards. And if Hernandez had stayed in the private sector throughout his entire career, and never voted in an election, he wouldn't have needed a green card either.

But when Hernandez enlisted in the Army, he broke the law  — even though he says he gave his parole documents to the recruiting officer, which should have tipped off the officer that something wasn't right.

And when Hernandez went to work at the federal Bureau of Indian Affairs and Bureau of Prisons and confirmed that he was a citizen, he also broke the law.

Because of the particular way Hernandez applied for citizenship, neither of these facts was supposed to be a strike against Hernandez on his application. In fact, according to Hernandez' lawyer, Elizabeth Ricci, they should have been points in his favor. When Hernandez came to Ricci for help, she figured out that Hernandez actually qualified for citizenship four different ways over the course of his time in the country:

  1. Because he served in the armed forces during a "time of hostilities" (during the end of the Vietnam War), he could qualify for immediate citizenship — without having to get a green card first.
  2. Because he received several service commendations during his time as a prison supervisor, he could qualify for immediate citizenship for making a "substantial contribution to national security." Ricci says Hernandez was commended for supervising the two Oklahoma City bombers in 1995; for escorting members of the Witness Protection Program; and for rescuing prison staff and inmates from a burning bus.
  3. Because he married a United States citizen, he could qualify for a green card immediately, and then citizenship three years later.
  4. Because he fled Cuba, he could qualify for a green card under a bill Congress passed specifically to make it easier for Cubans to become US citizens. He would then have to wait five years for citizenship.

Of all of these, Ricci figured the first one — immediate citizenship for military service — was the best bet. In fact, when she and Hernandez went in for the naturalization interview with US Citizenship and Immigration Services, she thought it was a slam dunk.

"Military veterans can do the (citizenship) oath the same day as the interview," she says, so she asked the interviewer if Hernandez would get to take the oath that day. According to Ricci, the interviewer said, "I don't have his file with me. But even if I did have his file, it's not clear that he's not a citizen — if he's a citizen, I can't naturalize him a second time."

Once the government verified that Hernandez was not, in fact, a citizen, they denied his application. Furthermore, they sent Hernandez and Ricci a series of searching questions about all the times Hernandez had voted illegally. At one point, Ricci says, they demanded verified documents from all the jurisdictions Hernandez has ever voted in — in California, Washington, Florida (twice), Pennsylvania, and Georgia — within 33 days. "He's been voting longer than I've been alive," says Ricci. It was an impossible task.

Furthermore, it's not supposed to be necessary. Most of the time, "character" is an important factor in an application for citizenship — so having committed voter fraud, even without knowing it, might be a serious liability.

But according to Ricci, when a veteran from a "time of hostility" applies for immediate citizenship, character isn't supposed to be a consideration. That left two options: either they didn't understand what Hernandez was eligible for, or they were considering filing voting fraud charges against him. (Ironically, during Florida's much-publicized voter purge of 2012 — a purge that caught only 40 noncitizens, and accidentally kicked over 2,000 people off the voter rolls — Hernandez' name stayed on.)

Ironically, Ricci points out, if they had decided to charge Hernandez and deport him, they wouldn't have been able to send him back to Cuba — the US doesn't send deportees to countries it doesn't recognize diplomatically. Instead, he would have served some time in jail, then get released under an "order of supervision": basically, indefinite parole.

Now that Hernandez has been naturalized, he doesn't have to worry about that possibility. But Ricci says that, even now that Hernandez is a United States citizen, he can still be arrested and charged for voter fraud — for committing the crime of acting like a citizen before he, or anyone else, knew he wasn't one.