The FAM says that U.S. citizens born in Tel Aviv or Haifa who “vigorously protest” the designation of “Israel” in their passports may have it removed and record only the city of their birth in their passports. Americans born in the Golan Heights must, according to the FAM, be listed as born in “Syria.” Areas that are not recognized countries such as “West Bank” and “Gaza Strip,” are, by the FAM’s fiat, recorded as places of birth on U.S. passports.
The Passport Office should play no substantive role in how foreign-born U.S. citizens identify themselves in case they are lost in foreign countries. How the “place of birth” is recorded on a passport should be determined by the passport applicant who not only must swear that how he records his “place of birth” is true but must also produce a birth certificate verifying his application.
Under such a new law foreign-born passport applicants would identify their “place of birth” in their sworn passport applications by naming the city or town in which they were born, together with the country. The text of the application – city and country, or city alone (if that is all the applicant notes on the application) – would be ministerially copied onto the applicant’s passport. If the State Department searches for the citizen abroad, it may identify him by his date of birth and by the place of birth that appears on the application. To prevent applicants from entering on their applications nonexistent or unrecognized countries, the law should prohibit the designation of countries the United States does not currently recognize unless that country was recognized at the time of the applicant’s birth.
By eliminating the judgmental role that the State Department’s Passport Office now plays in determining how “place of birth” is shown on a passport, Congress could erase the flaw that Justice Kennedy’s opinion found in Congress’s 2002 law. The entry for “place of birth” on the passport would then simply be the passport-holder’s self-identification rather than a statement by the P\president that “contradict[s] his prior recognition determination.”
In order to avoid any possible misunderstanding, Congress should direct that the following legend appear near the “date of birth” and “place of birth” entries on a U.S. passport: “These are the passport-holder’s self-identifications and do not constitute an official representation by the U.S. Government.”
The Passport Office would be removed from any participation in the process that determines the content of the “place of birth” designation. Such a law would govern all foreign-born American citizens and would not be limited to those born in Jerusalem. It would pass constitutional muster as a law within the authority over “passports in particular” that Justice Kennedy confirmed in his opinion and enable those born in Jerusalem to carry U.S. passports that say “Jerusalem, Israel.”
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I had hoped that a bar mitzvah gift to Menachem Zivotofsky, who will turn 13 in October, from the Supreme Court would be a U.S. passport declaring he was born in Israel. It’s now up to Congress to give him that present.
