Mark GoldfederEveryone arguing about whether Ilhan Omar was 17 or 18 in 2000 is arguing about the easier question. The harder question is 1995: whether the man who naturalized was legally her father.
On October 12, agents from Homeland Security Investigations searched Omar’s Washington home on a warrant signed by Magistrate Judge Matthew Sharbaugh and left with her phone, passport, notebooks, and computers. More than a dozen grand jury subpoenas have gone out, some to her relatives. The warrant reportedly rested in part on family text messages found on her sister Sahra Noor’s phone, seized earlier this year; the messages are under seal.
The grand jury sits in Minnesota and, as the New York Post and the Daily Wire have reported, is examining whether the family’s immigration paperwork was false going back to the 1995 admission. No one has been charged, and a naturalization-fraud offense committed in 2000 would ordinarily be time-barred, which is why investigators are reportedly checking whether the same birth date appears on a recent passport application, a separate, more recent statement.
Omar’s reported route to citizenship required no naturalization application of her own. She became a citizen at 17 through her father, under a law that made an unmarried child under 18 automatically a citizen when a surviving parent naturalized, provided the child was legally that parent’s child and was living here as a lawful permanent resident then or before turning eighteen. On that route, no court or agency issues an order admitting the child to citizenship. If the conditions were met, her citizenship attached by operation of law, and a certificate of citizenship documents that status rather than creating it.
Everyone calls this “denaturalization,” and as a label it is fine: citizenship acquired after birth, through a parent or otherwise, counts as naturalization under the statute. The trouble is the proceeding the word suggests. A standard denaturalization proceeding revokes an order that made someone a citizen, and on Omar’s route there is no order. If the government claims Omar never satisfied the requirements for derivative citizenship, the issue is whether she ever became a citizen at all. The denaturalization statute’s main provision revokes a person’s own naturalization; a separate provision addresses a child’s derived citizenship when a parent’s naturalization is revoked for concealment of a material fact or willful misrepresentation. As the Third Circuit explained in 2024, “A certificate does not confer citizenship.” It documents a status acquired under the law. Canceling the certificate alone cannot undo lawfully acquired citizenship; conversely, a certificate issued by mistake cannot confer citizenship when the statutory requirements were never met.
One route for deciding status is removal proceedings in which she asserts citizenship; if the court of appeals finds a genuine dispute of material fact about her nationality, a federal district court hears the question afresh. Another, subject to statutory limits, is a suit for a declaration of citizenship after the government denies her a right or privilege on the ground that she is not a citizen. In such a suit, the claimant generally bears the initial burden of establishing citizenship.
The rule the government could invoke comes from Fedorenko v. United States, decided in 1981. Feodor Fedorenko had been an armed guard at Treblinka and concealed it on his 1949 visa application. The Supreme Court held that his role in persecution made him ineligible for the visa he received, so he was never lawfully admitted; his citizenship fell with it, and once that was established, no judge had discretion to spare him. Apply the logic to a family admitted from a Kenyan refugee camp in 1995. If a material falsehood defeated the legal basis for that admission, the permanent residence built on it is open to attack, and so is the citizenship that depended on the residence. To get there, the government has to show what was said in 1995, by whom, and why it mattered to each person’s eligibility. Investigators reportedly sought Omar’s DNA by collecting discarded trash before the search. One possible purpose would be to test biological relationships claimed in immigration paperwork. If eligibility depended on a claimed family relationship, that evidence could matter. In its 1988 decision in California v. Greenwood, the Supreme Court held that the Fourth Amendment permits police to search trash left at a public curb for collection without a warrant, because people have no reasonable expectation of privacy in garbage exposed to the public.
Then there is the burden, and it depends on the proceeding. In a removal case under the framework the Ninth Circuit applied in Giha v. Garland, the government first proves foreign birth, which nobody disputes. The burden then shifts to the person claiming citizenship to show, by a preponderance of the evidence, that she derived it, with any citizenship documents she holds and prior official recognition weighed on the record. If she does, the burden returns to the government, which under Woodby v. INS must prove removability by clear, unequivocal, and convincing evidence, the standard governing ordinary civil denaturalization. Fedorenko reaffirmed that standard and added that the evidence must “not leave the issue in doubt.” In Maslenjak v. United States (2017), a criminal case about lying to obtain naturalization, the Court held that the government must show the lie actually mattered to the grant, and that qualification for citizenship was a complete defense to that prosecution.
A seat in Congress cannot cure a defect in citizenship any more than a political vendetta can create one. If she satisfied the law, her critics will have to live with it. But if the government proves that Omar never qualified, her defenders will have to confront the evidence.
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Dr. Mark Goldfeder, Esq., is Director of the National Jewish Advocacy Center.
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