Some may be questioning how and why President Trump has directed that the “ISIS bride” from Alabama, Hoda Muthana, be lawfully refused a right to return to the United States by the State Department. The debate centers on the assumption that because she was born in Hackensack, New Jersey, she is automatically a “natural born” citizen. In fact, according to the U.S. Constitution, she is not a U.S. citizen. Here’s why.
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The reason the Muslim girl was born in New Jersey, and her family was living in the United States at the time is because her father had been serving as a Yemeni diplomat. While it is true that he had ceased to be a diplomat about a month before his daughter was born it must be remembered that the baby’s parents were not citizens of the United States at the time of her birth, but rather, were living in the United States on the authority of their passports and the approval of the Yemeni government. They were citizens of Yemen and while subject to U.S. laws they were subject to the jurisdiction of the Yemeni government while living abroad.
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The operative law governing their status as foreign residents in the United States—which also governs and precludes their daughter’s status as a U.S. permanent resident—is the 14th Amendment of the U.S. Constitution (which also governs the children of immigrants—legal and illegal—born in the United States).
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In Section 1 of the 14th Amendment the governing language declares, “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
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While many Americans are confused about the issue of “birthright” citizenship, U.S. law has always held that to be able to successfully claim “birthright” citizenship a child must have been born with of at least one parent who holds legal citizenship in the United States. Indeed, under the U.S. Constitution—that ultimately governs U.S. citizenship—birthright citizenship has never extended to children born of parents who neither hold U.S. citizenship.
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In the case of the ISIS bride, neither her mother nor her father were U.S. citizens at the time of their daughter’s birth and, according to the 14th Amendment, regardless of her father’s changed diplomatic status, all members of the family were (for citizenship purposes) “subject to the jurisdiction” of Yemen—not the United States. The fact that she was born in Hackensack, New Jersey, or that she grew up in Alabama, or any other State of the United States, does not, and cannot, alter her citizenship status. She is not entitled by birth to be considered a U.S. citizen, and when she voluntarily left the United States to join the Islamic State, she also lost any right to return to the United States under her former permanent residence status. The President and Secretary of State are 100% correct in their interpretation and enforcement of U.S. law in denying her reentry into the United States predicated on citizenship status that she does not have.
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Some have suggested that regardless of her lack of legal authority to return to the United States that she should nonetheless be allowed to come back with her 18 month old child because her treatment if not returned, and that of her child, would be undetermined and perhaps fatal if left in prison in Syria, and that it is possible that she could also be an important source of intelligence to the U.S. and allies about ISIS. In point of fact, she is not in the custody of the United States and, without regard to any potential injury she might suffer in the hands of other jurisdictions, she voluntarily fled the U.S. and we have no compelling legal justification to assume custody of her or her child. The precedent of such action could lead to unacceptable consequences in the U.S. in the future. And concerning any intelligence value, it is doubtful that she would have intelligence of any value that would not be available with far less liability and risk.
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Finally, with respect to liability and risk, no one in the United States can seriously believe that this woman who went to great lengths to join ISIS in Syria has now experienced a complete change of heart and mind. She has said that she understands that she might have to spend decades in U.S. prisons if she is allowed to return to the United States. No one should forget for a moment that whomever this woman was as a child growing up in Alabama, today she is a veteran Islamic jihadist who has served the Islamic State’s Caliphate being the wife of three Islamic warriors killed in action by U.S. and allied forces. She may indeed be moving into a far more important level of jihadism seeking to return to the United States to inspire, indoctrinate, and enlist other Americans to join the jihad in the United States and commit terrorist acts against Americans on U.S. soil whether she be allowed her freedom or the jihadi mission field in American prisons. No serious threat assessment would fail to recognize that this woman may not be—indeed probably is not—the misguided child that made her pilgrimage to Syria to fight for the Islamic State. She is a 24 year old jihadi widow fully indoctrinated and trained to wage war against those the Caliphate consider infidels—you and me.
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Be wise. The President is right to refuse to allow this threat back into the United States. We owe him a great debt of thanks for his steadfast commitment to our safety and security.