Excerpted From: Michael Neal, Return of the New Mexican-American Diaspora, 32 Berkeley La Raza Law Journal 47 (2021) (543 Footnotes)(Full Document)


MichaelNealDuring the last twenty years, Mexico has become home to a surprising group of emigrants. They do not come from a war-torn nation, nor do they come freely. These emigrants are U.S. citizens--expelled by their own country. Since 2000, the United States has removed as many as three million Mexican immigrants from its borders. In doing so, the United States has forced Mexican-American children to emigrate to Mexico, in order to remain with their undocumented parents. Today, there are over half a million U.S.-born children living in Mexico, forming part of the world's largest American diaspora. This mass expulsion raises the question: what will happen to members of this new Mexican-American diaspora?

Studies across disciplines highlight the human costs of immigration enforcement on children. However, the far-reaching legal consequences of expelling U.S.-born children remain scarcely discussed. History demonstrates the complicated legacy mass removals have in the realm of citizenship. During the early to mid-twentieth century, mass expulsions of ethnic Mexicans in the United States forced millions of Mexican immigrants and their U.S.-born children out of the country. Many of these Mexican-Americans children were raised in Mexico, where they eventually had children of their own. A child born abroad to a U.S. citizen may automatically obtain citizenship at birth, a status called acquired citizenship. Like all citizens, acquired citizens possess the fundamental right to enter the United States, also known as the right to return.

The intricate statutory scheme that governs acquired citizenship was designed, in part, to restrict ethnic Mexicans from becoming citizens and entering the United States. Asserting acquired citizenship is document-intensive, involving witness affidavits, employment records, school records, and-- in more recent times--blood testing. expelled to Mexico often grow up in working-class households and lack the documentation to substantiate their Mexican-born children's acquired citizenship. Moreover, acquired citizens were not, and are not, afforded counsel as of right. Consequently, acquired citizens descending from U.S. citizens expelled generations ago have been detained, removed, and incarcerated under the false assumption they are undocumented immigrants.

Tragically, the recent expulsions of U.S.-born children of undocumented Mexican immigrants have set in motion a similar chain of events. Many of these Mexican-American children had no choice but to follow their parents to Mexico, where they may eventually transmit U.S. citizenship to their own children. History demonstrates these Mexican-born acquired citizens will eventually “return” to the United States. When they do, many acquired citizens will lack the means to assert their U.S. citizenship. These historical forces perpetuate a devastating cycle of detention, removal, and incarceration of Mexican-American acquired citizens.

Over the years, scholars and policymakers have proposed heightened due process protections to prevent the removal of U.S. citizens. Appointing counsel in removal proceedings constitutes a common-sense reform to an immigration system that continues to remove citizens. However, the plight of indigent acquired citizens seeking to enter the United States receives little attention. Generally, the earliest opportunity an acquired citizen has to assert their citizenship is by applying for a passport at a U.S. consulate in their country of birth. Consular officers are State Department employees charged with adjudicating the citizenship of foreign-born in connection with passport applications. Consular officers provide limited assistance to acquired citizens who assert complex citizenship claims, which can elude even skilled professionals. The wrongful denial of a passport perpetuates the cycle of detention, removal, and incarceration. The availability of counsel in consular citizenship adjudications is, thus, crucial to preventing the unjust treatment of acquired citizens.

Affording assistance of counsel in consular citizenship adjudications is not just a matter of policy. The Due Process Clause of the Fifth Amendment requires fundamental fairness in proceedings which pit the government interest against the private interest at stake. Recently, a district court held that restricting access to counsel in consular citizenship adjudications violated due process. Even so, the right to obtain and access counsel does not help those acquired citizens who cannot afford to hire an attorney. Consulates leave indigent acquired citizens to their own devices, jeopardizing their birthright citizenship and infringing upon their right to return--simply because they are poor. Such a result defies fundamental fairness.

This Article contends the recent expulsion of U.S.-born children of Mexican descent will give rise to a new generation of acquired citizens born in Mexico. Further, this Article contends consulates must afford assistance of counsel in consular citizenship adjudications to indigent acquired citizens seeking to “return” to the United States. Part I reviews the right to return, the history of acquired citizenship law, and the current provisions governing acquired citizenship. Part II reviews the history of mass expulsions which have given rise to acquired citizens born in Mexico, the generational return of acquired citizens, and immigration policies which have resulted in a new Mexican-American diaspora. Part III discusses the process that “returning” acquired citizens must undertake to assert their citizenship and how the lack of assistance of counsel during this process has resulted in their removal and incarceration. Finally, Part IV discusses why indigent acquired citizens possess a Fifth Amendment Due Process right to appointed counsel in consular citizenship adjudications.

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As Mexican-American children uprooted from their homes rebuild their lives in Mexico, the historical parallels between the Mexican “Repatriation,” Operation Wetback, and recent expulsions of Mexican immigrants become clear. Over time, this new diaspora will give rise to a generation of acquired citizens born in Mexico. History demonstrates that many of these acquired citizens will eventually embark on a generational return to the United States. When they do, many acquired citizens will struggle to assert their U.S. citizenship. Asserting acquired citizenship is a costly, document-intensive process governed by a complex statutory scheme that was designed to restrict ethnic Mexicans from entering the United States. Many acquired citizens will come from working-class backgrounds and have little knowledge of acquired citizenship. Many will not speak English or have the means to hire an attorney to assist them. As such, a new generation of Mexican-American acquired citizens risks falling into the same cycle of detention, removal, and incarceration that has harmed past generations.

It is not enough that acquired citizens receive appointed counsel in removal proceedings. Due process requires appointed counsel for indigent acquired citizens in consular citizenship adjudications. A wrongful passport denial violates an acquired citizen's fundamental right to return to the United States and strips them of their very “right to have rights.” Acquired citizenship eludes even skilled professionals and is liable to erroneous adjudications. Consulates provide little to no assistance to acquired citizens asserting their citizenship, leaving those who cannot afford to hire an attorney on their own. Appointed counsel may spell the difference between vindicating one's birthright citizenship and de-nationalization. Daniel's ordeal also demonstrates the cascading effects of failing to provide counsel to indigent acquired citizens and how appointed counsel in consulates can break the devastating cycle of detention, removal, and incarceration.

“[C]itizenship is a most precious right” for all U.S. citizens. The rights of acquired citizens are no less precious. The time has come to treat acquired citizens with the fairness and dignity demanded by due process and relegate the injustices inflicted on Mexican-American acquired citizens to the past.

Michael Neal is a legal advisor for the International Rescue Committee and a former Assistant Federal Defender for the Western District of Texas.