Donald Trump’s refusal to let an American-born woman return to the US after she ran away to join Isis amounts to a dangerous overreach by a president who wants to “operate by executive fait”, immigration lawyers and critics say.
The criticism comes after the Trump administration announced this week that 24-year-old Hoda Muthana would not be allowed to return to the US saying she has no legal basis to be in the country, in spite of her lawyer’s and family’s claims that she was issued a US passport in 2014 before leaving the country.
She “is not a US citizen and will not be admitted into the United States. She does not have any legal basis, no valid US passport, no right to a passport, nor any visa to travel to the United States,” Secretary of State Mike Pompeo said on Wednesday in a statement.
Ms Muthana is among roughly 13 individuals identified as Americans who are currently being held by Kurdish forces in northeastern Syria, and who have encountered similar issues with repatriation into the United States recently as Isis has lost nearly all its significant geographical strongholds.
Men in similar circumstances have reportedly been subject to sealed indictments, and sent back to the US for charges.
24-year-old Ms Muthana was born in Hackensack, New Jersey in 1994, just after her father left his job as a former United Nations diplomat from Yemen, according to documentation presented by the family and their lawyers.
In 2014, she is said to have left her studies at an Alabama school to travel to Turkey, and then was smuggled into Syria to join Isis. Before that trip, she reportedly renewed her passport that she had been first issued as a child. After she went missing in Syria, her family says they received a letter indicating her passport had been revoked.
Documentation they said the presented to prove their daughter was born after her father stopped receiving diplomatic protections — protections that would have disqualified Ms Muthana from US citizenship even if she were born on US soil — were not returned.
David Leopold, the former president of the American Immigration Lawyers Association, told The Independent that denying Ms Muthana the ability to return to America and argue her case denies her an essential right laid out in the US Constitution, which protects an individuals’ right to due process. Regardless of what heinous crimes she may have committed if she joined forces with Isis, he said, the US government is required to grant her due process before the courts.
The possession of a passport “creates an irrefutable presumption” of citizenship, he said. “It is proof of citizenship. If I need to prove my US citizenship, I show my US passport.”
“It goes right to the fundamental rights of our democracy — due process,” Mr Leopold continued. “ We don’t just strip someone of citizenship.”
César García Hernandez, an associate professor of law at the University of Denver says that the US State Department is very careful when issuing passports to citizens, to the point that individuals sometimes have to take the US government to court in order to be issued the documents.
“The fact that the government did issue her a US passport … means that she should at the very least have the ability to challenge the State Department’s decision to ban her from returning to the United States,” Mr Hernandez said.
He continued: “Citizenship is the most fundamental legal tie between a person and the country and it should not be up to an individual person to sever that tie, even if that person is the secretary of State.”
There are few instances in which an individual can give up their citizenship, or have it revoked, but Mr Hernandez and Mr Leopold say that those are relatively long, involved processes. One route would be to declare allegiance to a foreign state — which Isis is not — while another would be to be convicted of treason — which would require repatriation and a trial.
Mr Leopold said that the efforts by the Trump administration to keep Ms Muthana out of the US fall in line with the way the president has treated the federal government writ-large.
“We’re dealing with the mindset of an authoritarian. And this is the kind of thing that you see in authoritarian countries,” Mr Leopold said, noting that the president is also attempting to circumvent normal legal practice by declaring t state of emergency in the US to build a US border wall after Congress refused to fund the effort.
“We don’t just make declarations based on what we see on Fox News or in the newspapers,” he continued. “The president unfortunately does.”