Articles Posted in Citizenship

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BosniaImmigrants to the United States can become citizens through the process of naturalization, and unlike natural-born citizens, it is possible for them to lose citizenship. The Immigration and Nationality Act (INA) states that a conviction for unlawfully obtaining citizenship can result in the loss of naturalization, but it does not define the scope of the government’s power under this provision. The U.S. Supreme Court ruled earlier this year that the government cannot revoke a person’s naturalization unless the fraudulent statement or action that led to the conviction was materially related to the approval of the naturalization petition. Maslenjak v. United States, 582 US ___ (2017).

Under federal criminal law, it is an offense to obtain naturalization for oneself or anyone else by any means that are “contrary to law.” 18 U.S.C. § 1425(a). The statute’s rather vague phrasing has been interpreted to include false statements in connection with a naturalization application. What remained unclear was whether the false statements have to be material to the eventual decision to grant naturalization.

The INA identified several specific grounds for revocation of naturalization, including a conviction under § 1425. In that case, the INA states that the court that enters the conviction should “revoke, set aside, and declare void” the person’s naturalization order. 8 U.S.C. § 1451(e). This section is also silent on the question of whether the underlying unlawful act must be directly material to the naturalization decision.

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Bald Eagle PortraitThe future of immigration law in the U.S. is, to put it as simply as possible, uncertain at the moment. The White House has expressed interest in reducing the total number of immigrants allowed into the country, and it has stepped up immigration enforcement to an even greater degree than the previous administration. In this environment, immigrants living in the U.S. seem to be stepping up their own efforts to claim whichever benefits may be available to them under current immigration laws. U.S. Citizenship and Immigration Services (USCIS) has reportedly seen an increase in the number of naturalization applications that it has received in recent months. Immigrants in the New Jersey and New York areas, including lawful permanent residents, nonimmigrant visa holders, and others, should be aware of their status and their rights under federal immigration law.

The Naturalization Process

“Naturalization” allows an immigrant to become a citizen of the United States, with almost all of the rights and obligations associated with that status. An individual begins the process of becoming naturalized by filing Form N-400 with USCIS. The general eligibility criteria for naturalization can be broadly divided into three groups:  age and immigration status, residence, and education and character. An applicant must be at least 18 years old as of the date they file their N-400, and they must have held lawful permanent resident status (i.e., a “green card”) for at least five years.

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Supreme CourtThe Immigration and Nationality Act (INA) provides that almost anyone born within the territorial jurisdiction of the United States is a U.S. citizen by birth, also known as “birthright citizenship.” Individuals who were born outside the U.S. may be eligible to claim birthright citizenship if at least one parent was a U.S. citizen who meets certain residency requirements. If an individual was born outside the U.S. to an unwed U.S. citizen parent, more stringent residency requirements apply, but only if the father is the U.S. citizen. A man born in the Dominican Republic to unwed parents, with a U.S. citizen father, challenged the constitutionality of this provision. The U.S. Supreme Court ruled that it violates the Equal Protection Clause of the Fifth Amendment, although the court’s solution was ultimately not beneficial to the respondent. Sessions v. Morales-Santana, 582 U.S. ___ (2017).

If a person’s mother was a U.S. citizen at the time of their birth outside the U.S. and was not married to their father, they are a citizen by birth as long as the mother had at least one year of continuous physical presence in the U.S. before the birth. 8 U.S.C. § 1409(c). The standard is very different, however, if the father was a U.S. citizen, the mother was not, and they were not married. In order for the person to have birthright citizenship, the father must have “a blood relationship [with the person] established by clear and convincing evidence,” must have “agreed in writing to provide financial support for the person” during their childhood, and must have acknowledged paternity or been adjudicated to be the father prior to the person’s 18th birthday. Id. at § 1409(a).

The respondent in Morales-Santana challenged a deportation order, arguing in part that § 1409(a) was unconstitutional because it discriminated against individuals born to unwed U.S. citizen fathers. He was born in the Dominican Republic to a U.S. citizen father who met all but one of the statutory requirements, missing the five years of U.S. residency by only 20 days. The Second Circuit Court of Appeals ruled that this part of the statute was unconstitutional, distinguishing the case from prior rulings affirming its constitutionality. See, e.g. Miller v. Albright, 523 U.S. 420 (1998).

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Wedding cakeFederal immigration law provides multiple ways that a person can become a naturalized citizen of the United States. Children may be able to obtain naturalization if one or both parents successfully complete the naturalization application process, but this does not apply to all children of newly naturalized citizens. The Immigration and Nationality Act (INA) draws a distinction between children who were either born in wedlock or have been “legitimated” under the laws of their home country, as opposed to children who were born out of wedlock. While the United States has done away with most legal distinctions between children born in and out of wedlock, they persist in some countries, and they may still be a factor under the INA. A recent decision by the Board of Immigration Appeals (BIA) addresses some confusion over this process. Matter of Cross, Int. Dec. 3826, 26 I&N Dec. 485 (BIA 2015).

The INA states that a child born outside the U.S. automatically becomes a U.S. citizen if at least one parent is a citizen, the child is less than 18 years old, and the child lawfully resides in the U.S. in the citizen parent’s custody. 8 U.S.C. § 1431(a). This applies whether the parent obtained citizenship “by birth or naturalization.” This may seem straightforward, but the way the INA defines a “child” for the purposes of this provision makes it more complicated.

For the purposes of the naturalization provisions of the INA, a “child” is defined as an unmarried person who is under the age of 21 and who, before the age of 16, was “legitimated under the law of the child’s [or the father’s] residence or domicile.” 8 U.S.C. § 1101(c)(1). The concept of “legitimation” or “legitimacy” relates to whether a child’s parents were married at the time of their birth and whether the child’s father has gained legal recognition as the father. Amendments to the INA enacted in 1995 changed most instances of the terms “legitimate child” and “illegitimate child” to “child born in wedlock” and “child born out of wedlock,” respectively.

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Serbia mapBecoming a naturalized citizen allows immigrants to make a permanent home in the United States. The Immigration and Nationality Act (INA) only allows the government to revoke a person’s naturalization under a very limited set of circumstances. The U.S. Supreme Court is currently considering a case, Maslenjak v. United States, in which the federal government is claiming authority to strip individuals of naturalization based on a very broad interpretation of the narrow circumstances allowed by the INA. The result of the case could affect naturalized citizens throughout the country, as well as immigrants who hope to become naturalized in the future.

The Fourteenth Amendment to the U.S. Constitution states that anyone “born or naturalized in the United States” is a citizen, with an exception for children born to foreign diplomats and others protected by diplomatic immunity. This is known as “birthright citizenship.” See United States v. Wong Kim Ark, 169 U.S. 649 (1898). People born outside the U.S. to one or more U.S. citizen parents may also be able to claim birthright citizenship under the provisions of the INA. See 8 U.S.C. § 1401. People born outside the U.S. to parents who are not citizens must seek U.S. citizenship through the naturalization process.

The INA defines “naturalization” as “the conferring of nationality of a state upon a person after birth,” with “nationality” defined to include citizenship. Id. at §§ 1101(a)(21) – (23). To be eligible for naturalization, an individual must meet multiple criteria, typically including residence in the U.S. as a lawful permanent resident for at least five years. Id. at § 1421 et seq. Once a person has become a naturalized citizen, the INA only allows revocation in limited circumstances, most of which are related to acts or omissions during the process of applying for naturalization. “[C]oncealment of a material fact or…willful misrepresentation” is a ground for revocation. Id. at §§ 1451(a). Conviction for the federal crime of “knowingly procuring naturalization in violation of law” can result in the loss of naturalization at the conclusion of the criminal proceeding. Id. at § 1451(e), 18 U.S.C. § 1425(a).

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flagsApplying for immigration benefits involves a substantial amount of paperwork, and it requires close and careful attention to detail. While mistakes can cause delays and other difficulties in an application, outright falsehoods have far worse consequences. The Board of Immigration Appeals (BIA) affirmed a removal order last year based, in part, on a finding that the respondent falsely represented himself as a U.S. citizen. Matter of Richmond, Int. Dec. 3867, 26 I&N Dec. 779 (BIA 2016). A key question before the BIA was whether a person’s intent in making a false statement is relevant.

The Immigration and Nationality Act (INA) provides a lengthy list of grounds for inadmissibility, including health problems, criminal activity, and national security concerns. Prospective immigrants with a history of immigration violations may also be deemed inadmissible. This includes someone “who falsely represents, or has falsely represented, [themselves] to be a citizen of the United States for any purpose or benefit under [the INA] or any other Federal or State law.” 8 U.S.C. § 1182(a)(6)(C)(ii)(I). The words “purpose or benefit” are important.

According to the BIA’s ruling, the respondent in Richmond is a citizen of Trinidad and Tobago, who entered the U.S. on a nonimmigrant visa in May 2001. After a conviction for second-degree assault—which was later overturned on appeal—the Department of Homeland Security (DHS) brought removal proceedings. It alleged that he was deportable for overstaying his visa under 8 U.S.C. § 1227(a)(1)(B) and for a conviction of an aggravated felony under § 1227(a)(2)(A)(iii).

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By LaNicoya- (http://www.flickr.com/photos/lanicoya_/1721626888/) [CC BY 2.0 (http://creativecommons.org/licenses/by/2.0)], via Wikimedia CommonsU.S. immigration law does not provide a specific definition of “citizen.” The Fourteenth Amendment to the U.S. Constitution identifies as a citizen anyone born in the U.S., except for children of foreign diplomats, and anyone naturalized after their birth. Since this is still not a distinct definition, U.S. citizenship is perhaps better described as a set of rights and duties, including the duty of loyalty to this country. Some people who become naturalized U.S. citizens retain citizenship in their country of origin. The U.S. Department of State (DOS) does not encourage dual citizenship, but the Supreme Court has held that it is permissible despite language in federal immigration statutes suggesting otherwise. Immigrants who wish to become naturalized U.S. citizens should consider the effect it might have on their relationship to their country of origin, and their future relationship to this country.

The Immigration and Nationality Act (INA) defines a “national” as “a person owing permanent allegiance to a state.” 8 U.S.C. § 1101(a)(21). It defines a “national of the United States” as someone who meets the previous definition with regard to the U.S., or who is a U.S. citizen. Id. at § 1101(a)(22). Congress has modified the laws regarding citizenship in, or allegiance to, more than one country on numerous occasions. Currently, the INA states that a person seeking to become a naturalized U.S. citizen must take an “oath of renunciation and allegiance,” which includes a statement that they “renounce and abjure absolutely and entirely all allegiance and fidelity” to any other country. Id. at § 1448(a)(3).

While a renunciation of allegiance to any other country is a requirement for naturalization, the INA does not provide a clear means of enforcing this oath. It states that both native-born and naturalized citizens can lose their U.S. nationality by “voluntarily…obtaining naturalization in a foreign state upon his own application,” serving in the military of a country “engaged in hostilities against the United States,” and other voluntary acts. Id. at §§ 1481(a)(1), (3). This does not, however, address most situations in which a naturalized citizen continues to avail themselves of citizenship in another country.

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USGC [Public domain], via Wikimedia CommonsThe current election season has seen a great deal of rhetoric regarding immigration, citizenship, and what it means to be an American. Most of the recent discussion has centered on questions like how many immigrants to admit to the country, and how to deal with undocumented entry. As the arguments grow heated, it is worth taking a step back and looking at how this country’s laws define terms like “citizen,” and how “we the people” fit together as a nation.

Federal law does not have one, distinct definition of a “citizen” of the United States. Rather, it is a collection of rights and obligations obtained by birth or by naturalization. U.S. Const. Amdt. XIV, § 1. “Birthright citizenship” refers to the principle that anyone born within the United States is automatically a citizen. A U.S. citizen is generally considered a citizen of both the United States as a whole and the state in which they reside. The rights of citizenship include travel to and from the U.S., consular services while abroad, and voting in local, state, and national elections. Obligations include payment of taxes and service on juries.

For the purposes of U.S. immigration law, a “state” includes the fifty U.S. states (i.e. Alabama through Wyoming), the District of Columbia, and the U.S. territories of Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. 8 U.S.C. § 1101(a)(36). Anyone born within these geographic areas, as well as other areas during a time when they were territorial holdings of the U.S., is deemed to have birthright citizenship. 8 U.S.C. §§ 1401-07. Children born to U.S. citizens outside of the territorial jurisdiction of the U.S. are generally also considered birthright citizens, or may obtain that status. 8 U.S.C. §§ 1431, 1433.
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German,_British,_American_warships_in_Apia_harbour,_Samoa_1899.jpgAn ongoing court battle illustrates the complex definition of “citizenship” in the United States. The general understanding of U.S. citizenship is that anyone born on U.S. soil is a citizen by birth, and that others can petition the government to become naturalized U.S. citizens. The question is more complicated, however, for people born in certain areas that are, technically, “U.S. soil.” People born in U.S. territories are not necessarily guaranteed citizenship by birth.

American Samoa is an “insular area” of the United States, meaning that it is not part of a state or federal district. The U.S. acquired it through a treaty with Germany in 1899. The Immigration and Nationality Act (INA) defines it as an “outlying possession of the United States.” 8 U.S.C. § 1101(a)(29). People born in American Samoa are classified as “nationals” of the United States, not citizens. 8 U.S.C. § 1408(1). The same is not the case for people born in certain other U.S. territories, such as Puerto Rico and the U.S. Virgin Islands.

Five people born in American Samoa filed suit for declaratory and injunctive relief, arguing in part that the INA’s denial of citizenship rights to the people of American Samoa violates the Citizenship Clause of the Fourteenth Amendment. The district court dismissed the plaintiffs’ complaint, finding that they had failed to state a claim on which it could grant relief. Tuatua v. United States, 951 F.Supp. 88 (D.D.C. 2013). The case is currently on appeal to the D.C. Circuit Court of Appeals.
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Samoa_Cram_Map_1896.jpgThe Fourteenth Amendment to the U.S. Constitution defines a “citizen” as anyone “born or naturalized in the United States.” The U.S. did not have a single, uniform system for naturalization until the Immigration and Nationality Act (INA) of 1952, which forms the backbone of today’s federal immigration laws. The “born in the United States” part of the Citizenship Clause, however, is more complicated than it might appear with regard to certain U.S. territories.

While the U.S. never had a colonial empire like Spain or the United Kingdom, it continues to hold several territories acquired in the 19th and 20th centuries. About four million people live in five “unincorporated territories” of the United States. The U.S. took control of Puerto Rico and Guam from Spain after the Spanish-American War in 1898, acquired American Samoa through an 1899 treaty with Germany, purchased the U.S. Virgin Islands from Denmark in 1917, and took over the Northern Mariana Islands from Japan after World War II in 1945. Each territory elects a non-voting delegate to the U.S. House of Representatives but has no representation in the Senate and no electoral votes in presidential elections.

These territories are classified as “unincorporated organized territories” (UOTs), except for American Samoa, which is an “unincorporated unorganized territory” (UUT). They are also known as “insular areas,” which are not part of a U.S. state or federal district. The term “unincorporated” means that the U.S. Supreme Court has held that the Constitution does not fully apply in those territories. The term “organized” means that Congress has enacted a body of laws to govern the territory—albeit with no electoral input from the territory’s residents. See, e.g. 48 U.S.C. Sec. 731 et seq. (Puerto Rico). American Samoa has no organic act. See 48 U.S.C. Sec. 1661 et seq.
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