Marshall Project: Citizen? Prove it.

PHOTO: ALLAN J. SCHABEN | LA TIMES

Manuel Herrera has been in immigration detention in Hudson County, New Jersey, for almost a year. In that time, his lawyer has been fighting to prove he is a U.S. citizen.

Herrera’s parents brought him to the U.S. from Honduras in 1976, when he was 3 months old. His family had green cards that allowed them to enter legally and stay indefinitely. He grew up between Manhattan and the Bronx, had two children, and worked odd jobs in construction. Even after getting arrested in his early to mid-20s for drugs and serving less than two years in state prison, Herrera never considered his immigration status at risk — until he was picked up by Immigration and Customs Enforcement in June 2017.

He is now facing deportation based on three drug convictions and a “possession of stolen property” charge, the most recent of which was in 2002. Thanks to his immigration attorney at The Legal Aid Society in New York, though, Herrera has since discovered he may have been a citizen all along.

“Everything I’ve found out about myself has been since I’ve been here,” Herrera said, in a recent interview at the New York City immigration court. “There are so many things about my family I didn’t know.”

There are two ways Herrera might have U.S. citizenship: first, through an application to naturalize that, 22 years later, is “still pending” with U.S. Citizenship and Immigration Services. And second, through his late grandfather, under what’s called “acquired citizenship.”

Citizenship is often discussed as a black-and-white issue. You were either born here or you weren’t; you either have a U.S. passport or you don’t. The Trump administration plans on asking people if they’re a citizen on the upcoming census. But there are countless cases like Herrera’s of people swept into removal proceedings who don’t know their own status.

And compiling the records to prove it can be a long and arduous process — especially for those without an attorney.

“It’s a legal status that has a lot of complexities,” said Professor Jacqueline Stevens of Northwestern University, an expert on citizenship and the director of the Deportation Research Clinic. “It’s unreasonable to expect people to know what the legal basis might be for their claims of U.S. citizenship, especially if it’s acquired or derived after being born abroad. There are these arbitrary rules that change in different time frames.” USCIS has a guide to when someone might be a citizen through their parents, based on factors like the year they were born and their parents’ marital status.

U.S. law says Americans should never be held in immigration detention, but research shows it has happened thousands of times. A recent investigation by the Los Angeles Times found ICE released 1,480 people since 2012 because of citizenship claims. Many of these are clear-cut cases of wrongful arrest, a mistaken identity, or officials refusing to accept passports as proof. But more common are cases like Herrera’s, where an immigration attorney’s dive into someone’s history reveals they may have a legal right to be here. Advocates fear more Americans may end up in immigration proceedings under the Trump administration, as he moves to deport more people more quickly.

In response to questions, ICE spokesperson Rachael Yong Yow said in an email that the agency “takes very seriously” any claims that a U.S. citizen is in detention and that they have continued to update their policies to guard against it, most recently in November 2015. “In light of the complexity of U.S. citizenship and nationality law, some individuals don't even know that they are U.S. citizens until well after they are encountered by ICE, and, in fact, it is ICE that often identifies indicia of potential U.S. citizenship of which the person encountered was unaware,” Yong Yow wrote in an email.

Because immigrants facing deportation don’t have a right to representation, many people have to navigate these questions without a lawyer’s help. Herrera only uncovered his possible citizenship claim because he lives in New York, one of the few cities in the country that provides free immigration attorneys to anyone who needs one.