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Suppose a person was claiming US citizenship by virtue of being born in the US, but had some difficulty proving that they were born in the US. What would be the legal standard of proof needed to prove citizenship? Let's say they were trying to obtain a passport or avoid deportation and the matter went to court.

To make the question more concrete, suppose, for example, that a child was born on a ship or aircraft that was heading to the US and the timing of the birth corresponded approximately to the point where they crossed the 12-mile territorial limit of US waters. Now there is some real uncertainty as to whether or not the birth occurred in the US. The line is not marked and everyone was too busy to keep track of the exact time and location of the birth. Obviously, different pieces of evidence could be provided. Perhaps some witnesses recall seeing land already before the child was born or noted that the aircraft was already descending.

This (extreme) example would be a situation where the facts cannot be established with certainty. If only a preponderance of the evidence can be established, would the person be treated as a citizen?

  • It has happened, in the US, a birth-certificate would be issued which would prove birth, but I'm not sure why you assume they would not be able to obtain that? – Ron Beyer Nov 1 '18 at 23:35
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    @RonBeyer this is a real issue for those born outside of hospitals, who may not have a birth certificate or whose birth certificate is questioned by the government. An example is those delivered in Texas by midwives, especially Latinos. – phoog Nov 2 '18 at 1:42
  • Does the person at issue qualify for citizenship in any other country? I believe there is a general presumption against statelessness. – Viktor Nov 2 '18 at 5:14
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    @Viktor there is no such presumption in US law. The US has not signed the convention on the reduction of statelessness, nor is there anything similar to be found in US legislation or case law. – phoog Nov 2 '18 at 16:58
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The case of Sanchez v. Kerry provides evidence as to what standard of proof is required in an analogous case. Petitioner sued the Dept. of State, which makes citizenship determinations (22 CFR 50.2), alleging that he was born in Brownsville TX and submitting a birth certificate in support of the claim. The court found that the Texas certificate was not valid evidence (it was alleged to be filed falsely), and instead a competing Mexican birth certificate was valid. The court concludes as a matter of law that "the plaintiff has the burden of proving, by a preponderance of the evidence, that he was born in the United States", with citations (Bustamante-Barrera, 447 F.3d 388, 394 (5th Cir. 2006); Reyes v. Neely, 264 F.2d 673, 674-75 (5th Cir. 1959); Tijerina v. Brownell, 141 F. Supp. 266, 270 (S.D. Tex. 1956); Patel v. Rice, 403 F. Supp. 2d 560, 562 (N.D. Tex. 2005).

The district court lays out the comparative evidence pretty clearly, so that you can see how the courts would probably rule (the case was upheld on appeal). The decision would be based on a totality of evidence, and one would have to go beyond the one fact that distinguishes this case from others. In Sanchez there was substantial counter-evidence. In the present case, other facts would be relevant, such as whether a birth certificate had been filed in a timely manner in some state, whether there was a competing birth certificate from another country. Testimony from competent witnesses would be germane, and could easily devolve into a series of competing technical claims (do people on a plane really know where they are relative to the ground?).

  • Thanks. This is a clear answer. The Sanchez v. Kerry case is the sort of situation I was thinking of, but in this case there is clear evidence. (That’s why I concocted a situation where there is no clear evidence and no one actually knows the truth.) – Thomas Nov 2 '18 at 17:42
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The burden of proof and standard of proof is different in the different legal situations you mentioned.

If the person is seeking to apply for a US passport, the person has the burden or proving that they are a US citizen (or non-citizen US national). Gerard Ashton's answer stated that the standard of evidence is "preponderance of evidence". But not being able to prove that doesn't mean that they are not a US citizen, only that they did not present sufficient evidence at that time.

On the other hand, in deportation proceedings, it is the government that has the burden of proving "alienage", since deportation only applies to "aliens". What this actually means is that the government first has the burden of proving, by "clear and convincing evidence", that the person was not born in the US (or that the person was born in the US but was not a US citizen due to being born to diplomats or they renounced US citizenship). If the government is able to prove that, then the burden shifts to the person to prove that they nevertheless are a US citizen.

It is possible that someone was born in the US, but for some reason cannot obtain sufficient evidence to prove their birth for the purposes of getting a US passport or ID or whatever, but at the same time the government is not able to deport them because (assuming the government didn't make a mistake) the government cannot prove that they were born outside the US.

  • Interesting. If it's really 50-50 someone could end up in limbo where they aren't deported, but can't get documents and potentially can't work legally. I wonder what the standard of proof is when trying to reenter the US after a trip abroad, as was the case for Wong Kim Ark. – Thomas Nov 4 '18 at 2:41
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I believe the standard could be different in different venues. Lets say the baby stays in the US. First, the parents go to the county and report the birth, explaining the circumstances, saying there is a probability the baby was born in US territory. The clerk taking the report has some standard for deciding what to put in the certificate. The certificate is issued and claims the person was born over international waters. The parents go to a state court and petition for an order compelling the revision of the birth certificate to state the baby was born in US territory. The court has a different standard.

In an alternative scenario, a birth certificate was issued at a time when it wasn't customary to ascertain whether the plane was over US territory; the certificate is silent on the matter. The child stayed in the US and is now an adult. The Department of Homeland Security learns of the born-on-a-plane situation and seeks the removal of the person. Since the person is in the US and hasn't admitted to being foreign-born, the judge hearing the removal request would need clear and convincing evidence the person wasn't a US citizen.

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