Case Update: Consular Report of Birth Abroad and minor child's U.S. passport application

A minor child born overseas to U.S. parents is eligible for U.S. citizenship if the requirements outlined in the Immigration and Nationality Act (INA) are met.   The parents must request a Consular Report of Birth Abroad (CRBA) as evidence of the citizenship before the child’s 18th birthday from the nearest U.S. embassy or consulate, and, if the child will be traveling, simultaneously request a U.S. passport and social security number.  The consular officer at the embassy or consulate is responsible for adjudicating a U.S. citizenship claim for applicants seeking a CRBA.  It will include an assessment of the validity of the citizenship claim, a review of the evidence of the child and parents’ identities, and evidence of citizenship.  (see 7 FAM 1441.3) 

In the Sabra v. Pompeo case, (No. 19-cv-2090) Baby M is the subject of a request for a CRBA and a U.S. Passport.  Baby M was born in a home-birth to 46-year-old Mrs. Sabra, a U.S. citizen who was living in Gaza.  Baby M’s father is a naturalized U.S. citizen, who was, at the time, living in California just prior to the child’s birth.  Based on these facts, Baby M qualified for U.S. citizenship under the INA. 

Mrs. Sabra traveled, without Baby M, to the U.S. Embassy in Jerusalem to apply for Baby M’s CRBA and U.S. passport.  She brought certain documents and was interviewed by a consular officer.  The consular officer requested additional information, finding that what Mrs. Sabra presented was insufficient.  More specifically, Mrs. Sabra had no birth certificate, although she later produced something that the consulate believed was created solely for the application process.  Mrs. Sabra also had no records verifying that Baby M was, in fact, her child.  

Mrs. Sabra argued that Baby M was sick and in the hospital and could not attend the passport interview (a child's presence at the interview is required).  Because she brought no records verifying the child's hospitalization to the initial interview, the consular officer did not excuse the child's attendance.  Mrs. Sabra also did not explain, to the consular officer’s satisfaction, how she would travel across land to an international airport and on a transatlantic flight with a sick child when she could not bring the child to this interview.  Mrs. Sabra claimed an immediate need to take Baby M to the United States for medical treatment.  Mr. and Mrs. Sabra sued the Secretary of State  for violating Baby M’s Fifth Amendment due process rights to U.S. citizenship and the ability to travel, and claimed the government interfered with their religious beliefs. 

In this particular memorandum opinion, the court concluded, on the parties’ simultaneous motions for summary judgment, that Mr./Mrs. Sabra did not provide the satisfactory proof of birth, identity and citizenship (which is usually shown by a birth certificate) to issue Baby M a passport and CRBA, but that the Secretary of State failed to establish a compelling government interest through the least restrictive means when its consular officer suggested that Mrs. Sabra submit to a DNA test and provide photographs of her pregnant to verify her relationship to Baby M.  

There are some fascinating constitutional issues in this opinion, and it is an interesting read for international family lawyers who routinely work with clients living overseas going through this process.