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JULY 1994

Article 12 - Freedom of Movement

In the United States, the right to travel -- both 
domestically and internationally -- is 
constitutionally protected.  The U.S. Supreme Court 
has held that it is "a part of the 'liberty' of 
which a citizen cannot be deprived without due 
process of law under the Fifth Amendment."  Zemel v. 
Rusk, 381 U.S. 1 (1965).  As a consequence, 
governmental actions affecting travel are subject to 
the mechanisms for judicial review of constitutional 
questions described elsewhere in this report.  
Moreover, the United States Supreme Court has 
emphasized that it "will construe narrowly all 
delegated powers that curtail or dilute citizens' 
ability to travel."  Kent v. Dulles, 357 U.S. 116, 
129 (1958).

Within the United States, there are no restrictions 
on movement or change of residence from state to 
state or city to city, save in exceptional 
situations, in which such restrictions would be 
warranted under paragraph 3 of this article 
(restriction of movement for persons under 
investigation, subpoena, or arrest warrant in a 
criminal matter, or restriction as a condition of 
probation or parole), or by a state of emergency 
under Article 4 or to protect national security 
under paragraph 3 of Article 12.  Nor is there a 
registration requirement for citizens.  Under the 
Alien Registration Act, 8 U.S.C.   1302, nonresident 
aliens over the age of 14 who remain in the United 
States over 30 days, and who were not registered and 
fingerprinted in their visa application process, 
must register and be fingerprinted.  This 
registration requirement does not, however, restrict 

Citizen Travel:  Passports.  Section 215(b) of the 
Immigration and Nationality Act, 8 U.S.C.   1185(b), 
establishes a general requirement that U.S. citizens 
use a passport to depart from or enter the United 
States.  No civil or criminal penalty is provided, 
however, for failure to comply with this statute.  A 
passport is not required for travel within the 
United States or between the United States and any 
part of either North or South America, except Cuba.  
Exceptions to the general rule requiring passports 
for foreign travel are also made for U.S. citizens 
travelling in their official capacity as merchant 
mariners or air crewmen, or on active military duty.  
An exception also exists for citizens under 21 whose 
parents are employees of a foreign government, and 
who either hold or are included in a foreign 
passport.  There are also limited circumstances in 
which a citizen can obtain a special pass from a 
consular officer or specific authorization from the 
Secretary of State to have the passport requirement 

Mandatory Denial.  Passports are issued to 
applicants as a matter of course in all but a few 
rare situations.  Except for direct return to the 
U.S., the law provides that a passport shall not be 
issued to an applicant subject to a federal arrest 
warrant or subpoena for any matter involving a 
felony.  Furthermore, a passport shall not be issued 
where the applicant is subject to a court order or 
condition of parole or probation which forbids 
departure from the U.S.  Passports will also be 
refused if the applicant has not repaid loans 
received from the United States for certain expenses 
incurred while the applicant was a prisoner abroad.  
Nor will a passport be issued if the applicant is 
under imprisonment or supervised release for any 
conviction, at either the state or federal level, 
for a felony involving a controlled substance.

Discretionary Denial.  In any case, including for 
direct return to the United States, a passport may 
be refused where the applicant has not repaid a loan 
received from the United States to effectuate his 
return from a foreign country, where the applicant 
has been declared incompetent, or where a minor 
applicant does not have the necessary consent of 
legal guardians.  Moreover, a passport may be 
refused if the Secretary of State determines that 
the applicant's activities abroad are causing or are 
likely to cause serious damage to the national 
security or foreign policy of the United States.  
Finally, a passport may be refused when the 
applicant is subject to imprisonment or supervised 
release for a misdemeanor drug conviction, other 
than a first offense for possession, if the 
individual used a U.S. passport or otherwise crossed 
an international border in committing the offense.

Revocation.  A passport may be revoked, restricted, 
or limited where the national would not be entitled 
to a passport as described above, or where the 
passport was obtained by fraud, or fraudulently 
altered or misused.  Unless specifically validated 
therefore, a U.S. passport shall cease to be valid 
for travel into or through any country or area at 
war with the United States.  U.S. passports may also 
be invalidated for travel through areas in which 
armed hostilities are in progress, or where there is 
imminent danger to the public health or physical 
safety of U.S. travelers.  Such determinations are 
made by the Secretary of State and are published in 
the Federal Register.

Due Process.  When a passport has been denied or 
revoked, the person affected receives notice in 
writing, and may go through a review process.  The 
adversely affected person has 60 days to require the 
Department of State or the appropriate Foreign 
Service post to establish the basis for its action 
in a proceeding before a hearing officer.  At the 
private hearing, the adversely affected person may 
appear and testify, present witnesses and other 
evidence, and make arguments.  If the person wishes, 
he or she may be represented or assisted by an 
attorney.  The adversely affected person is entitled 
to be informed of all evidence before the hearing 
officer and of the source of such evidence, and may 
confront and cross-examine adverse witnesses.  In 
the event of an adverse decision, the adversely 
affected person has 60 days to appeal to the Board 
of Appellate Review of the Department of State.  In 
either the original complaint and the subsequent 
appeal, if the adversely affected person fails to 
take advantage of the 60 day window, the matter is 
closed and not subject to further administrative 

Restrictions.  U.S. law provides generally that "a 
passport may not be designated as restricted for 
travel to or for use in any country other than a 
country with which the United States is at war, 
where armed hostilities are in progress, or where 
there is imminent danger to the public health or the 
physical safety of United States travellers."  22 
U.S.C.   211a.  Controls are currently in effect 
under this statute for Lebanon, Libya, and Iraq; 
passports are validated for travel to these 
countries on a case-by-case basis.  Apart from the 
above restrictions, there does not exist any legal 
authority that would permit the United States 
Government directly to prevent the peacetime travel 
of U.S. citizens abroad, except pursuant to U.N. 
Security Council mandatory sanctions.  In 
extraordinary circumstances, limitations may be 
imposed, e.g., on travel- related transactions with 
a foreign government or country, on the grounds of 
national or international security (e.g., pursuant 
to U.N. Security Council sanctions, the 
International  Emergency Economic Powers Act, 50 
U.S.C.   1701, or the Trading with the Enemy Act, 50 
U.S.C. App. 5(b), Regan v. Wald, 468 U.S. 222 
(1984)) which, while not regulating travel directly, 
may have the indirect effect of limiting travel.  
Recent legislation has prohibited the imposition of 
new controls on travel-related transactions under 
IEEPA after April 30, 1994.  This does not affect 
existing controls or new controls mandated by the 
United Nations Security Council.

Return to United States.  A citizen of the United 
States who can prove his or her citizenship cannot 
be deprived of the right to return to the United 
States under any circumstances.  However, if a 
person comes to the United States and has no 
acceptable documentation relating to citizenship or 
nationality, such as a passport or birth 
certificate, then the immigration officer at the 
port of entry may detain that person and conduct an 
investigation to determine citizenship. 8 C.F.R. 

Noncitizen Travel:  Departure Control Orders.  Non-
U.S. citizens are free to leave the United States 
and to return to their country of origin, or to 
travel to third countries, except in rare instances.  
Departure may be denied, for example,  to aliens who 
are fugitives from justice on account of an offense 
punishable in the United States.  If departure is 
restricted pursuant to a departure control order, 
the alien will be given written notice of that 
restriction, and will be entitled to an 
administrative hearing.  See generally 8 C.F.R. Part 

Restrictions on Internal Travel.  As noted above, 
travel within the United States is generally 
unregulated and unrestricted.  In exceptional 
circumstances, however, aliens are subject to 
certain conditions regarding their travel.  In most 
cases, such persons are diplomatic personnel or 
governmental representatives to international 
organizations.  Travel of diplomatic personnel may 
be restricted on the basis of reciprocity where 
travel of U.S. personnel is restricted in the 
foreign state; travel of aliens in either category 
may be restricted where they are considered to 
present a security risk to the United States.  
Rarely, other individuals who might otherwise be 
denied entry to the United States are permitted 
entry subject to restrictive travel conditions on 
national security grounds, e.g., where the 
individual has a past association with terrorist 
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