The Justice Department is contending that an American-born ISIS bride who drew President Donald Trump's ire last month as she made public pleas to return home with her young son is not a US citizen.
In their first response to a lawsuit that Hoda Muthana's father brought last week in a federal court in Washington, DC, prosecutors said that Muthana was never a US citizen because the UN had not notified American authorities that her father was no longer a diplomat until after her birth.
"Muthana is not and has never been a U.S. citizen, and her son likewise is not a U.S. citizen. Settled law applied to the relevant events clearly demonstrates that Plaintiff enjoyed diplomatic-agent-level-immunity until February 6, 1995—after Muthana's birth," prosecutors wrote.
Muthana, now 24, was a college student when she traveled to Syria more than four years ago to join ISIS -- eventually marrying three fighters and calling for the killing of Americans on Twitter. In a series of interviews last month from detention in a sprawling refugee camp in northern Syria with her infant son, she expressed deep remorse.
A federal judge later Monday morning will hear from both sides on the lawsuit and Muthana's request to expedite the case.
Trump tweeted last month that he directed Pompeo not to allow Muthana back into the country. Pompeo declared the same day in a statement that Muthana 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." Pompeo confirmed to NBC News the administration's position that Muthana was not a citizen because of her father's diplomatic status when she was born.
Muthana was born in Hackensack, New Jersey, in October 1994, according to her birth certificate, which was included in court documents.
Weeks before her birth, Muthana's father stepped down from a post at his country's mission to the United Nations in New York, relinquishing his diplomatic immunity but maintaining a diplomatic visa, which enabled him to stay in the country with this family legally, according to Charles Swift, the director of the Constitutional Law Center for Muslims in America and the lawyer for Muthana's father.
A person born in the United States is entitled to citizenship by virtue of the 14th Amendment, often described as the right of birthright citizenship. But a child born to a diplomat still under the protections of his home country would be considered a citizen of that home country. In his lawsuit, Muthana includes a letter from a State Department official in 2004 acknowledging his diplomatic employment ended in September 1994, over a month before her birth.
Lawyers for Muthana's father argue that the questions around the daughter's citizenship were already grappled with and answered in 2005 when she was issued a US passport.
Prosecutors in their response do not dispute the timeline laid out in the 2004 letter, but argue that while Muthana may have left his diplomatic post in September 1994, the UN did not officially notify the American mission until February 1995 -- the point in time that, they argue, international conventions recognize as the end of a diplomat's "function."
Prosecutors also say the State Department issued Muthana a passport "in error." In 2016, the State Department sent Muthana a letter to her home address telling her that her passport had been revoked because she was not and had never been a citizen, according to the court filing.