In 2014, a woman fled the United States to marry an Islamic State fighter in Syria. Now, widowed twice, she wants to return to the U.S. with her 18-month-old son. Whether she’ll be able to could set a major legal precedent, says Hemanth Gundavaram, who is co-director of the Immigrant Justice Clinic at Northeastern University.
Hoda Muthana, the woman at the center of the issue, is one of several women who left their home countries to marry ISIS fighters in Syria. Another so-called ISIS bride, Shamima Begum, from Britain, has, like Muthana, asked to return home after joining the terrorist group.
The question for their countries has become: Can they?
In the U.S., at least, “the right answer likely intersects with all three branches of government,” Gundavaram said.
In a tweet, President Donald J. Trump instructed Michael Pompeo, U.S. Secretary of State, “not to allow Hoda Muthana back into the Country!” The same day, Pompeo issued a statement declaring that Muthana wouldn’t be admitted into the U.S.
It’s not as black-and-white as that, Gundavaram says. “She’s entitled to due process, so this sweeping statement isn’t a declaration they can make,” he says.
But it’s unclear if that is the case.
The 14th Amendment to the U.S. Constitution states that people born on U.S. soil, regardless of the citizenship status of their parents, gain U.S. citizenship, Gundavaram says. But there is an exception that applies to the children of foreign diplomats.
“Because foreign diplomats aren’t considered to be under the jurisdiction of the U.S. at the time of their service in the U.S., any children of theirs born [in the country] aren’t considered U.S. citizens, either,” he says.
Muthana’s father says he was discharged from his diplomatic position before Muthana was born. The U.S. government says his termination wasn’t documented until after she was born.
In addition to the dispute over the timeline of Muthana’s father’s termination, there are other questions the courts will have to settle about her activities abroad.
For example, a U.S. citizen can be considered to have relinquished citizenship if he or she “enters or serves in the armed forces of a foreign state engaged in hostilities against the United States,” according to federal statute.
“Some might argue that conspiring with a terrorist group is the same thing,” Gundavaram says, “but there’s no legal interpretation over whether or not that’s true.”
Muthana has said she “deeply regrets” travelling to Syria to join ISIS, and claims she was “brainwashed” online into doing so.
While her case works its way through federal court, Muthana is in a refugee camp in Syria. The outcome of her case will “likely create a precedent,” Gundavaram says.
“Even if she is allowed to return, I’d think she could be subject to criminal proceedings for her association with ISIS,” he says.