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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.
JonathanReez
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    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 02 '17 at 12:07
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    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 02 '17 at 13:55
  • @WGroleau I assume the person in that question was punished for being honest in their ESTA application – JonathanReez Jan 02 '17 at 14:01
  • @WGroleau: Why would you miss your flight? You would only encounter US immigration officers upon entering the US, which usually happens after you've already gotten off your flight. – user102008 Jan 02 '17 at 21:24
  • (1) The question says "entering/leaving" (2) The first airport coming in may not be the destination. – WGroleau Jan 03 '17 at 01:22
  • @WGroleau: "The question says "entering/leaving"". Yes, because the law says both entering and leaving. But it's not possible for anything to happen on leaving because the US has no exit checks. – user102008 Jan 03 '17 at 16:50
  • But he did ask about both. Also, for a flight out (and some domestic), I've always had to present my passport at the beginning of the TSA check and again at the gate. It's technically possible to be identified as also a US citizen, though I suspect that such DB checks do not happen. Not yet anyway, although no doubt it will happen some day as we keep getting closer and closer to "1984." – WGroleau Jan 03 '17 at 16:57
  • @user102008 but airlines could refuse to fly dual citizens out of the US when the US citizen is not in possession of a US passport. I don't know off any airline doing this, but it is certainly possible. – phoog Jan 03 '17 at 22:34
  • @WGroleau when passing through the TSA check you can show a US driver's license or any other TSA-approved document, even if you're flying internationally. The TSA doesn't do immigration enforcement and they don't think about immigration status. They're only interested in identity. – phoog Jan 03 '17 at 22:36
  • If I am a dual-citizen and show the other passport, I don't think there's currently any way for them to know I am also a US citizen. – WGroleau Jan 04 '17 at 17:07
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    @wgroleau place of birth can give you away – JonathanReez Jan 04 '17 at 18:11
  • True. But they don't look at the passport; they just stick it in the scanner. – WGroleau Jan 04 '17 at 18:16
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    @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 00:03
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    @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
  • @user102008 That's true most of the time, but not always. Most Canadian cities with a significant number of passenger flights to the U.S. and an increasing number of overseas cities now have U.S. immigration and customs preclearance where you clear U.S. immigration before getting on the aircraft and then arrive at a domestic gate in the U.S. – reirab Apr 12 '18 at 15:07
  • @reirab but a US citizen still needs a passport or Nexus card to get a boarding pass for a flight from Canada to the US, which happens before getting to the immigration checkpoint. – phoog Jan 07 '19 at 02:58
  • @phoog My comment was in reply to user102008 stating that you wouldn't miss a flight because you wouldn't encounter U.S. immigration until you were already in the U.S. I was just pointing out that in many cases (especially from Canada) you may encounter U.S. immigration before you board the flight to the U.S., so missing a flight is a possibility then, as you'd have to commit the act of attempting to enter the U.S. on a foreign passport prior to boarding your flight to the U.S. – reirab Jan 07 '19 at 06:11
  • If a traveller by air is refused entry at the US for not having the proper documentation, the airline is responsible for carrying the passenger back to whence (s)he came. So, a lot of the documentation checking at boarding is corporate-driven, by airline personnel... – DJohnM Jan 10 '19 at 05:50

2 Answers2

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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.

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phoog
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  • 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 05 '18 at 15:37
  • To make sure I understand this: the act is illegal but carries no penalty? – user541686 Apr 15 '18 at 03:32
  • @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
  • @Kevin Interesting. I suspect that someone who has done this can legitimately say that they have not violated US immigration law, because the CBP inspector's field manual says "technically you are waiving the passport requirement for the Department of State," the officer is invoking the authority explicit in 8 USC 1185(b) to allow exceptions. If someone is excepted from the requirement, then they will not have violated the law. – phoog Oct 24 '18 at 20:01
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    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 06 '19 at 19:10
  • @Muzer indeed. I often wonder if that isn't particularly common. Making people write their passport numbers on a landing card, which they often fill out in a groggy state after waking up just before the end of a long flight, seems a recipe for disaster. – phoog Jan 07 '19 at 08:30
  • I'm not facile with US federal law, but there are often provisions in State law that provide if act x is deemed criminal by the code and a penalty not specified, then the penalty will be y. So even though there's no penalty in 8 USC 1185(b), there may be a penalty specified by another section of the USC. – DavidRecallsMonica Apr 09 '19 at 20:24
  • @David the section in question only makes the act "unlawful," however, not criminal. I am unaware of a default civil penalty. – phoog Apr 09 '19 at 20:25
  • @phoog I acknowledge the difference between saying something is "unlawful" and saying it's a "crime." I don't know federal law; in that arena, however, the two terms may be construed the same. At random (I searched for "federal crime"), I pulled 21 USC 481(a). It begins "(a) Unlawful acts. Except as authorized by this subchapter, it shall be unlawful for any person knowingly or intentionally..." So it's not clear that use of the magic word "crime" is required. – DavidRecallsMonica Apr 09 '19 at 22:26
  • @David You mean 21 USC 841(a). Note how 841(b) provides explicit penalties for violations of subsection (a). The provision of penalties makes those unlawful acts criminal. The 1978 repeal of the penalties related to 8 USC 1185(b) meant that violations were no longer criminal. I've yet to encounter an analysis that holds otherwise, including in reported opinions. The magic word "crime" is not required, but if it is not mentioned then mention of "felony," "misdemeanor," "sentence," or "Title 18" will do. See 8 USC 1325 and 1326 for further examples. – phoog Apr 10 '19 at 00:20
  • @phoog, Yes, should have been 21 USC 1841(a). The conclusion in your second sentence might be true, but I don't know enough about federal practice to agree that there is a federal law distinction between "unlawful" and "criminal." Maybe there is. Absent a more sophisticated understanding of how the USC is drafted, or a section-by-section examination of the USC to demonstrate there are no USC sections that prescribe punishments for "unlawful acts," or a citation discussing the distinction, however, I can't (yet) agree. – DavidRecallsMonica Apr 10 '19 at 02:56
  • @David why do you keep making these assertions while disclaiming knowledge about federal law and practice? – phoog Apr 10 '19 at 12:52
  • @phoog Because I'm a lawyer, and interested in how legal systems are organized. I don't say you're in error — your view may well be correct — only that I don't yet see evidence addressing it. Can you share a citation or other info that supports your assertion? – DavidRecallsMonica Apr 10 '19 at 14:04
  • Although there is not penalty, one could still be sent back for not being able to prove that they are an US citizen though correct ( as they don't have their US passport)? – Jesse Reza Khorasanee May 14 '19 at 02:36
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    @JesseRezaKhorasanee Even American citizens have been mistakenly deported, so anything can happen so it’s not the norm. The immigration officer is supposed to use all reasonably possible means to verify your citizenship and that can be done. There are many different documents and records when taken together will be able to establish citizenship. Laborious, yes but doable. So it is extremely unlikely for an American to be sent back. – Augustine of Hippo Jun 29 '19 at 12:52
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    @user56513 the likelihood appears to be highest for culturally Mexican people born in Texas with poor documentation of their birth (there's some issue with Texas birth certificates for home births) and for people who benefited from the child citizenship act and therefore have no direct documentation of their citizenship (or are even unaware that they possess it). A baby born abroad to a US citizen parent who is arriving with that parent should not be a difficult case unless it's unclear whether the physical presence requirement has been met. – phoog Jun 29 '19 at 15:28
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    But @JesseRezaKhorasanee yes, the ability to enter the US as a US citizen depends on being able to convince the immigration officer of your US citizenship, whether with or without a passport. – phoog Jun 29 '19 at 15:31
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    @David I asked a question about this at [Law.SE] but delayed mentioning it to you because of the dreaded "move this conversation to chat" warning. – phoog Jun 29 '19 at 15:36
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    @phoog Thanks for the reference, I wouldn't have seen it otherwise. An interesting discussion to be sure. At least so far, the landscape hasn't changed, as no one has found a catch-all penalty provision in federal law. So far, then, I suspect your interpretation (no stated penalty results in no punishability) prevails. – DavidRecallsMonica Jun 29 '19 at 16:01
  • This answer quotes a statute: "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". Then this answer implies this was in effect before 1978 and continues in effect now. But before the 9/11 terrorist attacks, U.S. citizens routinely entered Canada and returned to the U.S. without any passport from the U.S. or any other country. (I did so myself and I know of others doing so.) So something is missing here. – Michael Hardy Mar 01 '23 at 03:40
  • @MichaelHardy note the words "except as otherwise provided by the President and subject to such limitations and exceptions as the President may authorize and prescribe." There were regulations permitting this that were changed after 9/11. As noted in the answer, current exceptions include those allowing passport cards and enhanced driver's licenses for travel other than by air in the "western hemisphere" (actually just the northern part of the western hemisphere) and for trusted traveler programs such as NEXUS and Global Entry. None addresses use of a foreign passport. ... – phoog Mar 01 '23 at 10:09
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    @MichaelHardy ... Before 2002, I believe, proof of identity and nationality was sufficient to enter by land, but I haven't seen that version of the regulations. In practice, there is an implied right of a US national to enter the United States, so passport inspectors will waive the documentary requirements for a US citizen who reaches the border. I drove through part of Canada in 1993 entering both Canada and the US with my US driver's license and a verbal statement of birth in the US. My return to the US may have been strictly speaking "unlawful" depending on the regulations in force. – phoog Mar 01 '23 at 10:12
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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.

WBT
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    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 09 '19 at 16:11
  • I would add that there is a proposed new regulation that would impose a fee on US citizens arriving by land or sea without a WHTI-compliant document. – phoog Jun 29 '19 at 15:33
  • The United States has slowly been trying to come into line with international conventions, in this case, the UDHR, which states that no citizen of a country can be denied entry back into their own country. Thus the onus of proving citizenship for entry has implicitly fallen onto immigration authorities. – ouflak Jul 03 '19 at 08:52
  • @ouflak the UDHR does not have much to do with this. When you see this right mentioned in the courts, it is typically described as an a fundamental right associated with citizenship and therefore implicitly protected by the constitution. – phoog Mar 01 '23 at 10:42
  • @phoog, Wow, from the time capsule, hunh? No the UDHR does/did not have much to do with this policy or its implementation. I was commenting on the very general... mood, if you like,... of nations around the world, being signatories to UDHR, to try and respect it with either specific policies or their implementation of existing ones. The incidents where an actual citizen is denied entry into the country can become international 'incidents' real quick and there are a few entities which are quite happy to go online and highlight it. Any nation, especially a world leader, wants to avoid that. – ouflak Mar 01 '23 at 13:42
  • Well someone commented on my answer so I was rereading the page. :-/ – phoog Mar 01 '23 at 13:57