Earlier this month, I was interviewed by the Great Falls Tribune regarding the case of Anke Davis, a school teacher who emigrated to the United States in 1951.  (You can find the full article here.) Of course, Ms. Davis was a young girl when she first came to this country.  Her parents naturalized before she was 18 years old, and she always assumed she was a U.S. citizen as well.  However, after applying for Medicare benefits, she was told for the first time that she was not a citizen.  Naturally, this was a huge shock to her.

On several occasions, I have dealt with similar issues.  On one occasion, the government sought to deport a client of mine despite the fact that he had obtained citizenship through his parents.  I recall that during the last legislative session, some lawmakers proposed harsh penalties on anyone who could not prove citizenship or lawful residency.  At the time, I had attempted to explain that immigration status can be extremely difficult to determine — and is outside of the expertise of local police.  This provides a perfect example.

Despite being told that she is not a citizen, she may very well have acquired citizenship through her parents when they naturalized.  It comes down to a complex set of laws and requirements.  As I state in the article:

Unfortunately, it’s a situation that is not that uncommon.

Shahid Haque-Hausrath is a Helena attorney whose firm, Border Crossing Law, specializes in immigration and naturalization. Haque-Hausrath said that it’s surprisingly common for people who have lived in the U.S. their whole lives to discover that their citizenship status is unsettled.

“Immigration laws are very complex,” he said. “I’ve dealt with several people of Canadian decent where one of their parents was an American citizen and one of their parents Canadian, and they always assumed they were U.S. citizens because they had grown up here. But there are specific conditions that need to be met to become a U.S. citizen — even when one of their parents was born in the U.S.”

Davis’ situation is made even more tangled by the amount of time that has elapsed since she entered the country.

“Since 1934, the laws regulating naturalization and immigration have changed five times, and each individual’s case is determined to some extent by the laws that were in place at the time they entered the country,” Haque-Hausrath said. “What the basic law would say regarding Mrs. Davis’ case is that she would have had to fulfill a series of conditions before she hit the age of 18 in order to get citizenship through her parents.”

Haque-Hausrath said that in addition to her parents becoming U.S. citizens, Davis would have had to receive “permanent resident” status prior to her 18th birthday. If, as a child, her parents registered her as a permanent resident, then her citizenship was assured. But if they failed to do that, then Davis’ path to citizenship would have become much more tortuous. She would have been required to leave the country, apply for and receive permanent resident status abroad, then re-enter the U.S., at which time she would immediately have become a U.S. citizen.

“If she was here as a child on some form of visitor’s visa and never left the country and came back in to establish a permanent residence, then she would never have acquired citizenship,” Haque-Hausrath said. “If those conditions were never fulfilled before she hit age 18, they might argue that she lost her window of opportunity and therefore never became a citizen. What really matters is, was she a permanent resident on the day and time that her parents were naturalized? It all hinges on her being a permanent resident.”

While not irrelevant, the fact that Davis has lived her whole life in the U.S., is married to a U.S. citizen and has long-established ties to the community in which she lives is subsidiary to the status she was assigned at the time she was a child.

“The way that the rules are written, there is no discretion to sympathize with her situation or age and just allow her to become a U.S. citizen,” Haque-Hausrath said. “If she doesn’t meet these specific requirements, they would deny her the U.S. citizenship despite any humanitarian factors that they should take into account. It’s a very rigid set of rules.”

So much of this Gordian knot of laws and regulation comes down to one, credit-card-sized document Davis was issued at age 4. One side lists her name, her age and her country of origin. The other side shows a 4-year-old Anke d’Hane, white bow in her hair, and an authorization from the Department of Immigration and Naturalization to admit her into the U.S. legally.

Haque-Hausrath could not immediately identify the document from a photograph, but he did say it was a strong likelihood that the card was Davis’ original permanent resident status card.

If that is the case, than all Davis should need to establish her U.S. citizenship is that card, her birth certificate and a copy of her father’s naturalization certification — all of which she currently has in her possession. If that card is merely a visitor’s visa, then the whole story changes.

Haque-Hausrath said that even in a worst-case scenario, it is unlikely that Davis would be deported. However, she could be required to obtain her permanent resident status, and would likely have to wait for up to five years before being eligible for citizenship. She also would lose her right to collect Medicare benefits or vote over that same period of time.

“If she wasn’t a permanent resident and hasn’t been all these years, then all her years of working they would consider to be illegal employment,” Haque-Hausrath said.

If there is one lesson to be taken from this story, it is that we should be a bit more careful when referring to someone as an “illegal alien” or other pejorative terms.  Immigration laws are complex, and this complexity is belied by such rudimentary and offense terms.  Indeed, if you use these terms, you might be referring to people like Ms. Davis.