24

Answers to a related question mention that it is illegal for a US citizen to enter/leave their home country on a foreign passport. However this raises the following questions:

  1. What is the maximum prescribed penalty for violating these rules?
  2. Are US immigration officials known for actually applying the penalty? E.g. the Cuba embargo banning visits to Cuba was almost never enforced, so it's possible this law is ignored as well.
  • 2
    There is no penalty. I am traveling at the moment, so I won't be able to post a properly sourced answer for a couple of days. – phoog Jan 2 '17 at 12:07
  • 1
    A law with no penalty is not worth anything. But answers to the other question implies the potential "penalty" of missing your flight. – WGroleau Jan 2 '17 at 13:55
  • 2
    @wgroleau place of birth can give you away – JonathanReez Jan 4 '17 at 18:11
  • 2
    @WGroleau if you're writing about the TSA check, there is nothing wrong with a US citizen showing a foreign passport at a TSA check. The law only says that you have to have your US passport with you when you leave the US, but nobody enforces that, least of all the TSA. They're only checking that the photo and name on the ID match your face and the name on the boarding pass. They do look at the passport, and they don't scan it; they pass it in front of an ultraviolet light to see whether the fluorescent printing is present. – phoog Jan 13 '17 at 0:03
  • 1
    @WGroleau and if you're writing about my comment that airlines could prevent US citizens from leaving on non-US passports without also having a US passport, there certainly are ways for them to know the traveler is a US citizen, but there isn't any effort on their part to figure it out because there's not now a mandate for them to enforce the "leave" requirement of the law. If there were such a mandate, however, the government could give them access to databases to help catch US citizens in the act. It wouldn't be foolproof, but it would surely catch some people. – phoog Sep 14 '17 at 19:30
17

The law requiring US citizens to "bear" a US passport when leaving and entering the US is the Immigration and Naturalization Act section 215, found at 8 USC § 1185, Travel control of citizens and aliens, subsection (b):

(b) Citizens
Except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe, it shall be unlawful for any citizen of the United States to depart from or enter, or attempt to depart from or enter, the United States unless he bears a valid United States passport.

Source: https://www.law.cornell.edu/uscode/text/8/1185

The limitations and exceptions generally comprise things like frequent-traveler program cards and trips to Canada (the latter exception is now only available to children who are traveling by land). I believe there's an exception for military personnel traveling on orders, too.

Your questions:

  1. What is the maximum prescribed penalty for violating these rules?

There is none. The law originally provided for a fairly stiff penalty, but it also originally applied in times of war. It also originally said "a valid passport" without specifying that it had to be a US passport. Over the years, the law was modified to its present form; the penalty provision was repealed in 1978.

There's an interesting history of this section at http://isaacbrocksociety.ca/2013/05/01/the-history-of-the-requirement-that-u-s-citizens-only-use-u-s-passports-to-enter-the-u-s/

  1. Are US immigration officials known for actually applying the penalty?

Well, no, because there isn't one. Furthermore, of course, US citizens have a legal right to enter the United States, so CBP immigration inspectors will admit them even when they don't have the proper documents, as long as the inspector is convinced that the applicant is a US citizen. It appears to be official policy that the entering citizen be advised of the necessity of having a passport and then admitted to the country.

I'm unaware of anything that documents current policy, but a 2006 manual for Customs and Border Protection Field Inspectors -- the officers who carry out immigration inspections -- reads thus:

12.5 United States Passport Waivers.

(a) General. Although primarily charged with the responsibility of determining citizenship, you are required to verify the validity of a United States passport when one is required by law. When an applicant fails to present a passport or presents an expired document, the immigration officer shall, if satisfied that the person is a United States citizen, advise the individual of the necessity of having a valid U.S. passport. Although technically you are waiving the passport requirement for the Department of State, no form need be completed. In addition, there is no fee collected by INS. (Paragraph (a) revised 10/21/98; IN99-02)

(Source: https://www.shusterman.com/pdf/cbpinspectorsfieldmanual.pdf. This manual was acquired through the Freedom of Information Act, and as far as I know there is no more recent version publicly available.)

Finally, all of this concerns US immigration inspectors and therefore assumes the traveler has reached the US border. No commercial carrier is likely to board a traveler who doesn't have appropriate documents, so nobody should expect to be able to fly to the US using (for example) a US birth certificate or US naturalization certificate. If a US citizen is abroad without a US passport, and doesn't want to or cannot get a new passport, it will be necessary to travel to the US by land or by private boat or aircraft.

  • As an Addendum to the last paragraph: US birth/citizenship/naturalization certificates can be used to board a flight from overseas to Canada – Crazydre Apr 5 '18 at 15:37
  • To make sure I understand this: the act is illegal but carries no penalty? – Mehrdad Apr 15 '18 at 3:32
  • @Mehrdad it's "unlawful" according to the statute. The statute formerly specified a harsh penalty; it was repealed in the 1970s without being replaced. But if the immigration officer waives the requirement of the statute, then arguably the statute has not been violated. – phoog Apr 15 '18 at 16:39
  • @Mehrdad: In theory, if some other country ever asks you whether you have "violated the immigration laws of any country" or some such thing, you might be required to mention an incident like this. But I'm no immigration lawyer. – Kevin Oct 24 '18 at 19:46
  • 1
    Another addendum to the last paragraph: I imagine the most common case where this applies is for people who manage to lose their passport between boarding the aircraft and reaching immigration. My brother managed to do just that (albeit in the UK; we're British) recently... – Muzer Jan 6 at 19:10
1

I think the requirement for US citizens to bear a US passport is so that you can prove citizenship on any subsequent re-entry attempt. If you left the US without a US passport, authorities might not believe you are a citizen and might not let you back in, especially not as easily or quickly as you'd like. Pointing to this law, immigration agents (or others you need to convince of your ability to enter, such as an airline/common carrier's agent) can say it's your responsibility to have the passport. Anything they do to help someone who has failed to meet this responsibility is at their option and on a timeline convenient for them, not necessarily convenient for the traveler.

Thus, the penalty is the possibility of denied or delayed entry into the US, as well as the associated costs (e.g. missing connecting flights or meetings). You may also need to pay costs associated with obtaining documents proving citizenship urgently for presentation to border agents, if they do not believe your assertion of citizenship.

In addition to entry into the citizen's home country, having the passport is also often necessary to obtain certain consular services abroad. By not having one's passport as required by law, such services may be delayed or denied, and there may be practical costs/consequences associated with that.

  • 1
    The history of that law is that it applied initially during wartime and carried a stiff penalty for violators. When it was extended to times of peace, the penalty was removed. I think the requirement may indeed have been retained for the reason you cite, but it is not a particularly comprehensive way of achieving that goal. There is no requirement that a US citizen outside the US maintain a valid passport, for example, so nothing would stop anyone from leaving the US on the day his or her passport expires. – phoog Apr 9 at 16:11

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.