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The Golden Door

News and views on immigration law

Archive for the ‘Citizenship and naturalization’ Category

The Advantages of Citizenship

Tuesday, November 18th, 2014

Some U.S. permanent residents choose to remain residents rather than become citizens once they become eligible to naturalize.

Most of these permanent residents, in my experience, chose not to naturalize because while they live and work in the United States, they do not feel particularly ‘American.’  They may still feel a strong affinity to their country of nationality, or they may feel alienated from American culture.  They may come from countries where the U.S. was a foreign invading force that terrorized their families and feel that America is therefore not deserving of their loyalty.

Whatever the philosophical reasons, here is the concrete reality:  U.S. citizens have more rights and less burdens than U.S. permanent residents.  U.S. citizens can never be deported.  Permanent residents can be deported for, in some cases, surprisingly minor offenses, especially those involving drugs or narcotics.  U.S. citizens can vote and thus have a voice in government.  Citizens have more public benefits available to them than permanent residents.  In matters in which identity must be proved, for example applying for a marriage license, a driver’s license, Social Security card, opening financial accounts or applying for insurance, there are less paperwork requirements for citizens than permanent residents.  When permanent residents lose their green card (the actual card, not their status) their lives become a continuing series of closed doors.  Without their actual green card in many states permanent residents cannot obtain or renew their driver’s license or Social Security card.  Without a driver’s license they cannot legally drive and without both a green card and a driver’s license they cannot properly complete the I-9 form (see List B and List ) verifying eligibility for employment, which means strict limitations on how they can earn a living.

A permanent resident friend of mine was happily living and residing in America without feeling the need to naturalize.  He was an Ivy-league educated professional working at a well-paid IT job.  He was married, with a young child.  He had never gotten into trouble with the law, ever, and was a smart person and so figured he would just stay out of trouble and therefore did not have to worry about getting deported.  Then his wife, who had always struggled with mental illness, began a downward spiral.  She became violent towards him and erratic in her care of their child.  Their child was placed in foster care due to the unsafe home situation and she was committed to a mental health facility.  After she was released, his wife blamed him for their predicament.  After physically attacking him as he was driving one day, he obtained a protection order against her.  A divorce and custody battle ensued.  I pointed out to my friend that I would not be surprised if his wife falsely accused him of domestic violence, given her tenuous grasp on rationality, and that a domestic violence conviction can be grounds for deportation.  He is now applying for his citizenship, as he cannot risk being deported or disadvantaged in any way in his quest to make sure his child is safe and adequately cared for.

The moral of this story is that as a permanent resident you can be a smart, law-abiding person minding your own business and still run into the specter of deportation.  It is not as far-fetched as you may think.  Get your citizenship if you can.

Tran Law Associates can help you navigate the requirements of citizenship, and address any troubling aspects of your history that need rehabilitation before you can successfully naturalize.

Expungements: What you need to know before you expunge.

Tuesday, April 30th, 2013

For most people who acquire a minor criminal record that conviction becomes both a professional and a personal thorn in their side.  On the career-side, having a criminal record can make landing a job more difficult or might prevent you from doing the work you want to do altogether, whether that’s lawful on the employer’s part or not.  On the personal side, you may feel ashamed that you have this record that shows that you broke the law, or were convicted of breaking the law, and having to explain it whenever it comes up.

After experiencing the ramifications of having a criminal conviction, most people want to eliminate this from their record if they can, which usually means requesting that the record be expunged.  Expungement means that the record is destroyed, and anyone looking up your name in the jurisdiction in which it the record was generated should come up empty-handed.  Once an expungement petition is granted, the court administrator (usually the clerk of courts) where the record was originally generated should notify any other agencies to which the criminal record was sent, requesting that this information be removed from those databases as well.  In reality, such requests may or may not be made by the original keeper of the records, and the other agencies that received the criminal record information may or may not update their files in a timely manner, so information about your conviction may still show up in other databases, such as the FBI database.

In terms of immigration, before you expunge your record you should know this:  USCIS and the federal immigration courts often require that you disclose whether you have ever been arrested or detained by a law enforcement officer, charged with a criminal offense, convicted, and what your sentence was if you were convicted.  They require this information regardless of whether the record has been expunged.  And they expect you to provide certified records of these events, or a statement from the relevant agency stating that no record is available.

This means that once you record has been expunged there is no way for the record-keeping agency to issue you a certified copy of that record.  And, not infrequently, when you then request a statement that the record is no longer available due to expungement, the agency may not comply with this request for various reasons, including not understanding the request, or due to a policy of declining to verify the prior existence of a record that has been expunged.

Then you are stuck.  You have admitted to immigration authorities (in the course of, for example, applying for citizenship or for cancellation of removal) to having a criminal record, as the law requires, and yet you cannot provide verification of what happened, also as required.  It is because of this conundrum that I often advise clients to delay having their criminal records expunged until after they become naturalized.  A “clean” criminal record procured through the expungement process can be a headache in immigration proceedings because of the requirement to disclose ALL, even expunged criminal records.

This is an example of when consulting an attorney earlier rather than later is the wiser course of action.  Sometimes you don’t know what you don’t know!  Sometimes a consult early on the process can alert you to potential pitfalls before you commit them.  At Tran Law Associates, we aim to make the immigration process as painless as possible, including warning you of actions that may negatively impact your application for benefits.

 

False claim of U.S. citizenship – beware this pitfall!

Saturday, January 19th, 2013

As an immigration attorney, I find it important to make people aware of this potential pitfall. It may seem like a minor thing.  You, a non-U.S. citizen and lacking working papers, fill out a job application and check the box that says you are a U.S. citizen.  If you don’t check it, you don’t have the documents to prove that you’re eligible to work.  If you do check it, you get the job.  You know it’s probably against the law, but it’s what you need to do to get a job and pay the bills.

And it’s not like you’re going out and robbing someone, dealing drugs, or committing some sort of violent crime.

But, under immigration laws, the penalty for making a false claim of U.S. citizenship is the heaviest one available:  deportation without the usual avenues for relief.  If you are convicted of making a false claim of U.S. citizenship you are ineligible to apply for Cancellation of Removal, the same as if you are an aggravated felon or drug trafficker, or committed certain crimes of moral turpitude.  So the act of checking the “U.S. citizen” box on an I-9 form can land you in the same hot water as if you had  been caught dealing drugs or assaulting someone with a deadly weapon.

Harsh reality, but reality it is.

The Child Citizenship Act – derivative citizenship through a parent’s naturalization

Friday, January 18th, 2013

I recently encountered a gentleman who lives under the cloud of a deportation order that cannot be executed.  He spent six months in immigration detention, the end result of which was he was released because while he was ordered removed from the United States his country of origin will not accept him.  So he is not – currently – removable (deportable), but that could change if a new treaty regarding acceptance of deportees is signed between the U.S. and his country of origin.  Under immigration law, he is classified as an aggravated felon and a drug trafficker, factors that made him ineligible to apply for relief from removal such as Cancellation of Removal, even though he has U.S. citizen relatives.  So, he thought he was really at a dead end in terms of avoiding potential deportation.

He came to me because he came across something that made him think that he might, after all this, already be a U.S. citizen, which would make the specter of deportation hanging over his head simply disappear.  ICE cannot deport a U.S. citizen.  (Well, it happens, but it is not supposed to.)

The Child Citizenship Act of 2000 (“CCA”) changed the conditions that a person needs to meet to derive citizenship through a parent’s naturalization.  To “derive” citizenship means to obtain it through your relationship to someone else, usually a parent, both parents, or a grandparent.  Before the CCA, which went into effect on 2/27/2001, for someone to derive citizenship through naturalization, all of the following conditions had to be met:

1.  The person had to be under age 18.

2.  The person had to be a U.S. lawful permanent resident.

3.  BOTH the person’s parents had to naturalize before the person turned 18, UNLESS the parents had legally separated and the custodial parent naturalized before the person turned 18, or UNLESS one parent had passed away and the remaining parent naturalized before the person turned 18.

Derivation means you obtain the benefit automatically.  You have the status of U.S. citizen as of the moment you meet all of these conditions.  You do not need to apply for it, you already have it.  It’s advisable to get proof of your status, like a certificate of citizenship or a U.S. passport, but not necessary.

So, having one parent who naturalized before a child turned 18 was usually not good enough for a child born abroad to parents who were not U.S. citizens at the time of the child’s birth.  This created the strange incentive of – in the case of having only one naturalized parent – some individuals trying to prove that their parents were legally separated to obtain citizenship, even when the parents were happily still married to each other.  Public policy usually does not intentionally promote separation of families.  (One could argue that public benefits programs sometimes unintentionally promote separation of families, but that is a topic outside the scope of this blog.)

The CCA took away the requirement that BOTH parents be naturalized and in its place permitted children to derive citizenship from ONE naturalized parent, so long as, the same as under the prior law, the child was under age 18, a lawful permanent resident, and in the legal and physical custody of the naturalizing parent (which does not preclude the child also being in the legal and physical custody of the other, non-U.S. citizen parent).

But the CCA also, by its very enactment, added a new, time-limiting factor.  This was not a retrospective law so the child had to still be a “child,” that was, under age 18, when the law went into effect, on 2/27/2001.  So derivative citizenship can sometimes hinge on your birthday.  If your 18th birthday falls before 2/27/2001, you had to determine your eligibility to derive citizenship based on the first, more stringent set of factors listed above.  If your birthday falls on or after 2/27/2001, you could use the more lenient standard contained in the CCA.

It may seem unfair, to have your citizenship status in the end be determined by your date of birth, but that’s just one of the quirks of immigration law, and those of us who practice it must sometimes parse out eligibility for relief down to the very day a client is born.

Dos Erres: An international investigation impacting citizenship and asylum

Friday, September 28th, 2012

This is a lengthy but fascinating read:  “Finding Oscar:  Massacre, Memory and Justice in Guatemala.”

It is about a massacre committed by an army unit in Guatemala in 1982, and two young boys who survived the massacre because they were taken by soldiers responsible for the massacres and raised by the soldiers’ families.  One boy, three years old at the time, ended up as an undocumented immigrant in Massachusetts.  He now has a family of his own with three children.

The investigation into the massacre in the United States involved prosecuting a former Guatemalan soldier who became a U.S. citizen.  Because that man lied on his naturalization application about being in the military and about committing crimes, he was subject to prosecution for criminal violations of U.S. immigration law.  Because of jurisdiction and statute of limitations issues he could not be prosecuted by U.S. law enforcement for the actual crimes in Guatemala, and so the immigration violations were what got him in the end.  (Here’s an example I can use when counseling clients about the consequences of lying on your naturalization application!)  He was sentenced to the maximum sentence of 10 years imprisonment.

The boy, now a 33 year old man, Oscar Alfredo Ramirez Castaneda – an amalgamation of his birth and adoptive names, was granted political asylum because if he returned to Guatemala he is living proof that the massacre occurred and a target of dangerous people who want to cover that up.

This is a fascinating look at how a major investigation involved the governments of at least three countries:  Guatemala, the United States, and Canada.  If you have half an hour to spare, check it out.

U.S. citizenship abroad, by birth – update

Tuesday, July 19th, 2011

As promised, here’s the update on the client who couldn’t renew his license to carry concealed weapons because he could not produce a U.S. birth certificate even though he is a U.S. citizen by birth.

The Philadelphia Police Department’s Gun Permit Unit re-considered its position, and this gentleman has been issued his license to carry, despite not being able to produce the mythical birth certificate.

When this client first came to me, I asked him out of curiosity what he carried and he answered, almost sheepishly: “Nothing.  But I want to be able to carry if I want to.  And now, it’s about the principle of the matter.”  Principles satisfied, case closed.

Selective Service and Naturalization

Saturday, May 7th, 2011

For men applying to become American citizens, an issue that often crops up is whether the applicant registered for Selective Service, the registration system for military-aged men so that they can be conscripted into military service if the draft is ever re-instated.

Male U.S. citizens (“USCs”) and legal permanent residents (“LPRs”) born after December 31, 1959, are required to register between the ages of 18 and 26.  But it’s not only USCs and LPRs who are required to register, but also certain seasonal agricultural workers here on temporary visas, refugees and asylees, and undocumented immigrants.

So, the United States government requires not only its citizens, but also undocumented immigrants, to register for a potential draft.  Being drafted would mean being forced to join the U.S. military and fight for America in time of war.  The first question that pops into my mind when considering this scheme is:  “Do we really want men without allegiance to the U.S. fighting in our military?”  The second question is: “So, we expect undocumented immigrants, who are currently being particularly demonized and whose already limited rights are being further restricted by anti-immigrant factions, to fight and be prepared to die for the U.S.?”  The third question is:  “Why on earth would an undocumented immigrant, who constantly lives life under the radar of government authorities, register for Selective Service and risk deportation?”

For immigrants eligible to naturalize, which means someone with at least three years, and usually five years, of legal permanent residency, some then face the hurdle of having not registered for Selective Service when required under the law to do so.  For a man who was once an undocumented immigrant but later obtains legal permanent residency, he then must under the letter of the law explain why he didn’t register for Selective Service.  Most applicants didn’t realize that this requirement existed at the time that they were supposed to register, and this good faith ignorance is usually accepted as a valid excuse for failure to register.  But, if the examiner decides to disbelieve the good faith ignorance excuse then this is a valid basis for denial of the naturalization application.

Should we deny a man U.S. citizenship after he has earned his legal residency; been a law-abiding member of society; and learned the basics of our history, politics, and legal system, often better than those born here, because when he was undocumented he chose not to register for Selective Service and therefore expose himself to deportation?  Especially given that the purpose of Selective Service is to identify men to conscript into military service for a country for which, at the time, the applicant had so few rights that he could be held in almost indefinite “detention” (read, “imprisonment”) without the right to free legal counsel, without the protections of criminal defendants against search and seizure, and yet he was widely dubbed a “criminal” and treated as a criminal.  In the balance, I feel that even a willful failure to register for military conscription for someone whose rights and options were already so limited should not be a bar to naturalization.

Please visit us at our address below for more information.

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

U.S. citizenship by birth, abroad

Friday, May 6th, 2011

A Catch-22 situation surfaced in my practice recently.  A man applying to renew his license to carry a concealed firearm (“CCF”) in Philadelphia was asked by Philadelphia Police to produce proof of his immigration status, since he was born abroad.  I’ll call him the Applicant.  The Applicant produced his valid U.S. passport, but this evidence was deemed unacceptable proof of his citizenship because the CCF permit application specifically states that “foreign-born” applicants must produce their naturalization documents, and “passports are not acceptable.”  (See Item 3.f.)

However, although the Applicant was born abroad — meaning not in the United States or any of its territories or possessions — he was also born a U.S. citizen.  Under the immigration law in effect at the time of his birth, and under the specific circumstances of his situation (I won’t bore you with the details but, if you’re interested, you can read the relevant statutory section, § 201(g), here), he meets the legal requirements for acquiring U.S. citizenship at birth and retaining that status.  As the Applicant was a U.S. citizen at birth he does not have a certificate of naturalization, just his U.S. passport.  In fact, it is impossible for him to legally obtain a certificate of naturalization , as he is already a U.S. citizen.

The Philadelphia Police Department’s application for CCF therefore now excludes, presumably inadvertently, an entire subset of U.S. citizens from obtaining a CCF permit.  It provides for legal permanent residents, and U.S. citizens born in the U.S., and naturalized U.S. citizens, to obtain a CCF permit.  But it fails to recognize that a person can be a U.S. citizen at birth — not a naturalized citizen — while born abroad.  Being born abroad of a U.S. citizen parent or parents is not an uncommon occurrence.  Examples of children of U.S. citizens commonly born abroad are the children of U.S. diplomats and other U.S. government employees, including the children of U.S. military personnel.  Even Americans who are not in the employ of the U.S. government have children abroad due to a variety of reasons and, based on the U.S. citizenship status of one or both parents, the child can still be a U.S. citizen.

Upon being informed of the fact that a person can be born a U.S. citizen abroad, the Philadelphia Police Department asked the Applicant to obtain a certificate of citizenship but did not guarantee that the certificate would be sufficient to meet the immigration status documentation requirements of the CCF application.  Obtaining a certificate of citizenship costs $600 for the filing fee.  The CCF application is $25.

What I don’t understand is why a U.S. passport is not valid proof of citizenship, whether naturalized or acquired at birth.  A U.S. passport is acceptable proof of citizenship, absent any contrary evidence, for the Department of Homeland Security (“DHS”), and all the immigration-related agencies under the aegis of DHS.  For example, on the U.S. Citizenship and Immigration Services (“USCIS”) website, a search for “proof of U.S. citizenship” turns up this page.  The Social Security Administration accepts passports as proof of U.S. citizenship.  The Department of State accepts passports as proof of U.S. citizenship.  If I had more time, I would list more federal agencies that accept U.S. passports as valid proof of U.S. citizenship.  And yet, for some reason, passports are not good enough to establish U.S. citizenship for the Philadelphia Police Department’s Gun Permit unit.

Hopefully, the Philadelphia Police Department’s Gun Permit unit will revise its procedures so that it no longer inadvertently excludes U.S. citizens at birth born abroad from carrying, or requires them to spend an extra $600 to produce extraneous evidence of citizenship with no guarantee that this will be deemed satisfactory evidence.  One ironic side effect of this policy is that U.S. legal permanent residents and naturalized citizens are placed in a more beneficial category than those born to a U.S. diplomat or U.S. military personnel serving our country.

I’m still awaiting a concrete response.  I’ll post an update if I get one.

De Hieu Tran – another immigration scam artist

Thursday, November 11th, 2010

On August 12, 2010, a 42-year-old Vietnamese man was arrested in Kentwood, Michigan, for falsely holding himself out to be a U.S. Marine and ICE officer, and for scamming the local Vietnamese community for immigration benefits. Only a licensed immigration lawyer or BIA accredited representative can perform this kind of service, and people seeking citizenship should be cautious when choosing their help in order to avoid scams like this.

De Hieu Tran was ordered deported in 2002, but instead of going back to Vietnam it appears that Tran used his experience with the immigration system to trick other Vietnamese into paying him money to deliver immigration benefits. Tran is accused of accepting large cash payments in return for his promises to get his ‘clients’ their “immigration paperwork” and “expedite their becoming naturalized United States citizens.”

Reports indicate that Tran has never served in any U.S. military branch nor been employed by ICE (ICE generally doesn’t employ deportees). Tran is reported to have even gone so far as to wear a Purple Heart, the military award given for being wounded or killed in combat, to impress his victims. When he was arrested, he was wearing a U.S. military flight suit with a USMC captain insignia. This raises the question, for me, of why he would bother. What real Marine goes about his or her civilian life routinely dressed in uniform? Did he think that being in uniform would make his claims of being able to deliver immigration benefits in exchange for money more believable? Apparently it worked, as reports indicate that Tran received thousands of dollars from at least four Vietnamese nationals for his ‘help.’ His victims thought they were paying a bribe for special, fast-track treatment, such as getting citizenship less than five years after becoming a permanent resident.

While Tran himself is a fine example of what you DO NOT want your children to grow up to be, I find that I also have little sympathy for his ‘victims.’ They bought into his promises of special treatment in return for a bribe. They wanted to jump the line and thought that they could buy their way in. Let me just say, to anyone thinking of taking a ‘shortcut’ by lying or falsifying documents, sure, there’s a chance you might get away with it, and get your citizenship a little sooner. After all, immigration officials are only human. They don’t know everything, and sometimes make mistakes. If you’re caught, however, you not only risk jail time and fines, but also losing whatever rights to immigration benefits you had before.

Applying for immigration benefits can be costly, time-consuming, and frustrating, and the process is often easier with the help of an immigration lawyer.  Believe me, I know this. I know it better than most people. Sometimes the law doesn’t make much sense. But if you don’t respect the law as it exists, and try to go around it for your sole, selfish benefit, please don’t expect to get any sympathy when you get caught. Not only do you do a disservice to yourself and your family, but you also do a disservice to the other members of your community, who must now deal with the bad reputation that your actions will bring upon them. When in doubt as to the law or your options, choose an experienced immigration lawyer to help you address your problems the right way.

Djung Tran, Esq.

Tran Law Associates

834 Chestnut Street #206
Philadelphia, PA 19107
(215) 690-1933

Double jeopardy if your father, rather than your mother, is a U.S. citizen

Sunday, October 3rd, 2010

In law school, I remember reading Nguyen v. INS (U.S. 2001).  This was an immigration case in which a young man, born out of wedlock in Vietnam to a U.S. citizen father and a Vietnamese mother and who had lived in the United States since he was six, was ordered deported after being convicted of sexual assault of a child.  As an immigration lawyer, the case stayed with me because the petitioner was Vietnamese, like me, and the gender discrimination issue was a thorny one to grapple with.

The young man at the heart of Nguyen v. INS, Tuan Anh Nguyen, had uncontested legal permanent resident status, but only citizenship status would save him from deportation.  The law at the time of Nguyen’s birth imposed different requirements for unwed U.S. citizen fathers to transmit citizenship to their children than for unwed U.S. citizen mothers.  For the record, the requirements for unwed fathers and unwed mothers are still different under current law, but to a lesser degree.  In Nguyen’s case, for an unwed father to transmit citizenship to his child, the father must have resided in the United States for a total period of at least five years at the time of the child’s birth, with at least two of those years being after the father turned 16.  In addition, the father had to meet a number of other conditions, one of which was to establish the paternity of the child before that child turned 18.  It was this particular requirement that prevented Nguyen from establishing his U.S. citizenship through parentage, as Nguyen’s father did not take this step until after Nguyen turned 18.  Had Nguyen’s mother been the U.S. citizen, rather than his father, she would only have needed to have resided in the United States for 12 continuous months at the time of his birth to transmit citizenship to him.  Nguyen challenged the higher standard for unwed fathers to transmit citizenship as violating Equal Protection.

The Supreme Court, in a 5-4 decision, held that, pursuant to an intermediate scrutiny standard, the different treatment of unwed mothers and fathers did not violate Equal Protection.  The majority, in a less-than-convincing opinion, justified the different treatment of unwed mothers and fathers based on (1) the fact that women give birth makes it reasonable to require that fathers provide some additional proof to establish paternity; and (2) the fact that women give birth gives mothers a greater opportunity to develop a meaningful parent-child relationship with their children than fathers with their children.

The end result was that Nguyen is not a U.S. citizen and presumably was deported to Vietnam, even though he had not lived there since he was six years old.

This term, the Supreme Court will be deciding another immigration gender discrimination case in which the ability of unwed U.S. fathers to transmit citizenship to their children is again held to a higher standard than for unwed U.S. mothers.  In Flores-Villar v. United States, another young man faces deportation even though his father is a U.S. citizen.  Ruben Flores-Villar came to the United States at two months of age and has lived here ever since.  He was first ordered deported for an importation of marijuana conviction.  He kept coming back home, however (imagine that!), and kept being re-deported.  Finally, during the seventh deportation proceeding, Flores-Villar raised the defense that he is a citizen because the different rules for transmission of citizenship for unwed mothers and unwed fathers violates Equal Protection.

In Flores-Villar’s case, the applicable statutory provision that prevents him from being a U.S. citizen by parentage is the requirement, for unwed U.S. citizen fathers, that the father have resided in the United States for at least five years after the age of 14.  This effectively means that men could not transmit citizenship to any children they had before the age of 19, as it would be chronologically impossible to accumulate this five-year residency requirement before turning 19 years old.  Flores-Villar’s father was 16 when he was born.  Had Flores-Villar’s mother been the U.S. citizen, though, she would only have needed to have resided in the United States for a period of 12 continuous months to transmit citizenship.

The United States is arguing that the lowered standard for unwed mothers is aimed at preventing the creation of stateless children, that is, children who can claim no nationality and thus can claim no country’s protection.  This is based on the fact that in some countries a child born to an unwed mother is treated as having the nationality of the mother, rather than the nationality of the country of birth.  If the United States were to make it difficult for an unwed U.S. citizen mother to transmit citizenship to her child then there might be a lot of children out there who don’t have U.S. citizenship but also don’t have the citizenship of the country in which they were born.  One might then ask, why put up any roadblocks to this goal by mandating time-in-residency requirements for either unwed mothers or unwed fathers?  But another competing policy consideration from the government’s standpoint is to ensure that children who receive U.S. citizenship through a parent have some ties to the United States, and the solution to this concern appears to be the requirement that the parent has spent some time living here.  The question is, does the goal of reducing the potential for stateless children justify the different treatment of unwed fathers’ versus unwed mothers’ ability to transmit U.S. citizenship?

With Flores-Villar, I can at least see both sides of the legal arguments:  the Supreme Court is being asked to weigh the government’s purported interest in preventing the children of unwed mothers from being deemed stateless against the resulting discrimination against unwed fathers.  What I find particularly troubling is the result that no unwed father under the age of 19 can transmit U.S. citizenship, while unwed mothers of any age can.  This creates an unacceptable risk of creating stateless children of unwed U.S. fathers and this provision should be struck, if nothing else.  It should not be impossible for a U.S. citizen to transmit citizenship to his children based solely on his age at the time of the child’s birth.

In Nguyen, the Court’s reasoning that the biological fact of birth makes it easier to determine maternity than paternity and, further, makes unwed mothers more likely to form a stable, lasting relationship with their children than unwed fathers is outdated and sexist.  DNA testing and evolving parental roles make it ever less likely that men who want to help their children claim U.S. citizenship by parentage will not actually be the biological fathers of these children and not be integrally involved in their children’s lives.  In addition, the lower standard for unwed mothers allows women to have much less established relationships with their children and yet still be able to transmit U.S. citizenship.  This discrepancy allows the identified goal of ensuring that a child has sufficient ties to the United States to fall by the wayside when it is the mother transmitting citizenship.

But putting aside the legal arguments, what is at stake here is that individuals whose only known home country is the United States, and who have committed crimes but served their time, are being forced into exile, and even an immigration lawyer cannot help them in such a case.  Had their mothers been U.S. citizens instead of their fathers, they would not be subject to deportation.  It must seem bizarre to Nguyen and Flores-Villar and to everyone else in this situation that such a twist in some obscure immigration law can have such a profound effect on their lives.  It’s like being subject to double jeopardy, being punished for your crime and then deported, but only if your father were the U.S. citizen parent.  Having your mother be the U.S. citizen parent is like the get-out-of-jail-free card.

Deportation of foreign nationals who come here as adults and commit serious crimes is a necessary tool in policing our communities.  But the deportation of those who came here as young children and who have the strongest ties to communities here in the United States, while serving to get rid of people with unsavory criminal histories, also devastates the U.S. communities to which these individuals belong.  And keep in mind that the deportee will find himself or herself a stranger in a strange land, more than likely without the support of a caring community.  What kind of new life will the deportee build?  Is this really what we want to be doing?

Djung Tran, Esq.

Tran Law Associates