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The fight over whether ISIS recruit Hoda Muthana is a US citizen, explained

Muthana was born in the US. She got a US passport. But the Trump administration isn’t taking her back.

Hoda Muthana burned her US passport when she joined ISIS, in a similar gesture of protest to the burning of the US flag here. Now, the Trump administration is arguing she never should have been issued a passport — and isn’t an American citizen at all.
Ahmad Al-Rubaye/AFP/Getty Images

Hoda Muthana was born in the US. In 2014, as a 20-year-old student at the University of Alabama-Birmingham, she told her parents she was going on a field trip to Atlanta; instead, she withdrew from school, used the reimbursed tuition to buy a plane ticket, flew to Turkey, made her way to Syria, and joined ISIS.

Now she wants to come home. But the US doesn’t want to take her back — and it claims it doesn’t have to.

While in Syria, Muthana used her social media accounts to call for the murder of Americans.

“Go on drive-bys and spill all of their blood, or rent a big truck and drive all over them. Veterans, Patriot, Memorial etc Day parades..go on drive by’s + spill all of their blood or rent a big truck n drive all over them. Kill them,” Muthana tweeted from her now-suspended Twitter account, according to a 2015 profile of her by BuzzFeed News.

But that was then. Now, with ISIS in shreds, she says she’s prepared to face trial in the United States for her actions.

Secretary of State Mike Pompeo, however, has declared that Muthana was never actually a US citizen — and that, therefore, there’s no legal obligation for the US to take her back, even if it’s to put her on trial. (On Wednesday, after Pompeo’s statement, President Donald Trump tweeted that he had “instructed” Pompeo not to let Muthana back into the US.)

Muthana’s father, Ahmed Ali Muthana, is suing to allow her to come home, claiming that both she and her 18-month-old son are in fact US citizens and that they are being deprived of their constitutional rights.

The question of whether Muthana actually is a citizen or not turns out to be fairly complicated, and the US government’s position has changed over time.

At issue is whether she was “subject to the jurisdiction of the United States” at birth, a status that her father claims she holds and that the federal government, starting in 2016, has claimed she does not.

Whether Hoda Muthana is a citizen or not depends on whether her father was still a diplomat when she was born

Hoda Muthana told NBC News that her citizenship has never been questioned before, and that “[w]hen I tried filing for a passport it was very easy. It came in 10 days.”

But that’s not true.

Muthana was issued a passport as a US citizen, that’s true. But the government challenged her citizenship before giving her a passport. And in 2016, after she’d burned her passport upon joining ISIS — “Bonfire soon, no need for these anymore, alhamdulliah [thanks be to God],” she tweeted, with a photo of her and several other women’s Western passports — the Obama administration officially declared the passport and her citizenship had never been valid to begin with.

The 14th Amendment to the US Constitution provides birthright citizenship to everyone born on US soil and “subject to the jurisdiction of” the United States. While there’s an argument (somewhat on the fringe) that “jurisdiction” doesn’t apply to unauthorized immigrants living in the US, everyone agrees that it doesn’t apply to babies born to foreign diplomats.

Diplomatic immunity exempts the diplomat — and, generally, his or her family — from US jurisdiction, the argument goes, so children born in the US to foreign diplomats are citizens of their parents’ home countries, not US citizens.

Hoda Muthana’s father, Ahmed Ali Muthana, came to the US from Yemen in 1990 to serve as a diplomat representing his home country at the United Nations, whose headquarters are located in New York City.

However, he lost that job — and thus his diplomatic immunity — as the result of the Yemeni civil war in the mid-1990s. The question is exactly when he lost his diplomatic privileges — and whether that happened before Hoda was born, on October 28, 1994, or after.

The US government has told Ahmed Ali Muthana (according to his lawsuit) that its records show he held diplomatic status until February 6, 1995 — that is, until after Hoda’s birth — and therefore that Hoda was born while he was still a diplomat and thus is not a US citizen, but a Yemeni one.

Ahmed Ali Muthana, on the other hand, claims in a lawsuit that he surrendered his diplomatic identity card on June 2, 1994 — months before his daughter was born.

Legal experts I spoke to said that that wouldn’t necessarily mean he officially lost his diplomatic status on that date, though. Steve Vladeck, a law professor at the University of Texas at Austin, said that under US law, ex-diplomats who are still in the country enjoy some “residual immunity” while they pack their bags and prepare to head back home.

But the Muthanas weren’t just wrapping up their affairs before returning to Yemen; they were settling in the country for good. Hoda Muthana’s mother had already applied for a green card in early 1994, based on her father’s US citizenship. And both of Hoda’s parents got green cards after she was born.

Hoda could have gotten one as a dependent of her parents, but since the family thought she was a US citizen by birth, they didn’t apply for one.

The discrepancy first came up in 2004 (per the lawsuit), when Ahmed Ali Muthana applied for a passport for Hoda. When the government said its records showed he was a diplomat when Hoda was born, Muthana obtained a letter from the US Mission to the UN declaring that their records showed he was officially “noticed” as a diplomat through September 1, 1994.

Hoda’s passport was subsequently granted, and renewed 10 years later — right before she left the country to join ISIS.

The Obama administration revoked Muthana’s passport, but the Trump administration’s declarations raise more questions

In January 2016, the US government sent the Muthana household a letter addressed to Hoda officially revoking her US passport. The letter claimed that the passport had been issued in error, because there was “no evidence” that she was actually a US citizen by birth. The government asserted that, contrary to the testimony provided in 2004, the US Mission to the UN’s records showed that Muthana’s father didn’t lose diplomatic status until months after Hoda was born.

In theory, Hoda had the right to a hearing to challenge the passport revocation, but she didn’t ask for one; after all, she was encamped with ISIS by that point.

Revoking someone’s passport isn’t the same as revoking their citizenship. But the implication of the Obama administration’s revocation of her passport was that she had never been a citizen at all. (The administration only explicitly said that she “did not acquire US citizenship at birth,” but because the Muthanas thought she had been born a citizen, she didn’t get naturalized when her parents did.)

The Trump administration has simply been forced to address the question publicly because Muthana now seeks to return to the US and face trial here. And they’ve done so in their typically blunt way, issuing a press statement that Muthana was never a citizen and therefore that it didn’t have to take her back.

Some legal experts — including Vladeck — believe that the government was obligated to follow a specific process before determining Muthana was not a citizen, and it’s not clear whether either the Obama or Trump administrations followed that process.

But it’s also not clear whether that process necessarily applies to the revocation of a passport on the grounds that the passport was issued in error.

If Muthana is a citizen — even though her passport was revoked — it’s “generally understood” that she’d be allowed to return to the US, Vladeck said. But if she’s not a citizen, there’s very little hope for her to return; attorney Gabriel Malor told Vox that if she tried to apply for some other form of immigration status at this point, she’d be barred because of her history with a terrorist group.

Crucially, because Muthana’s 18-month-old son was born outside the US and the father was a Tunisian ISIS fighter, the question of whether Muthana is a US citizen determines her son’s citizenship, too.

Muthana’s father’s lawsuit is something of a desperate move. The US government generally doesn’t allow passport decisions to be subject to judicial review, so it’s not clear that a judge will ever force the Trump administration to explain how it decided Muthana was not a citizen — much less overrule them. In the meantime, Muthana is stuck in Syria.

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