Image 01

The Golden Door

News and views on immigration law

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

January 18th, 2013 by Djung Tran

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.

Prisons and immigration enforcement

October 1st, 2012 by Djung Tran

Here’s an enlightening article about the costs of incarceration and, incidentally, how much increased immigration detention has contributed to the coffers of the private companies that run prisons:  “Prison Break.”

The increased emphasis on immigration enforcement means keeping more people detained, which is a costly endeavor, both in money and human costs, as illustrated on this page of the Detention Watch Network website.

And for those interested in learning more about the state of immigration detention – which is supposed to be merely detention, not punishment, because individuals are held while their status is determined, NOT because they are found guilty of any crime – here’s a report on the use of solitary confinement in immigration detention:  Invisible-in-Isolation-Sep2012-detention. (See the Executive Summary for a quick overview of the findings.)

There’s lots more about this issue.  These three sources are just an introduction.

Dos Erres: An international investigation impacting citizenship and asylum

September 28th, 2012 by Djung Tran

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.

“Have you ever …. [in America]?”

September 4th, 2012 by Djung Tran

Lately, I have been encountering a way of thinking that can have dangerous results in immigration applications.  I call it the “If it didn’t happen in America then it didn’t happen” syndrome.  The thinking here is that when an applicant is asked specific questions on immigration applications such as “Have you ever been married?” or “Do you have any children?” or “Have you ever committed a crime?” the applicant responds “No” – even when there has been a marriage, or children, or criminal history – when these events happened outside of the United States.  But, not surprisingly, the answer is only “No” when the applicant believes that to say “Yes” would be detrimental to the application.  When the event that occurred outside the United States would be clearly beneficial, such as when the foreign national applicant married a U.S. citizen abroad, then the answer is “Yes.”

Ironically, sometimes a “Yes” answer would have no adverse consequence but a false “No” may.  For instance, a naturalization applicant told me that she had been married and divorced in her home country prior to emigrating to the United States as the adult, unmarried child of a refugee.  However, she had never disclosed the marriage, answering the question “Have you ever been married?” with a “No,” and the question “What is your marital status” as “Single, never married.”  The fact of her prior, terminated marriage is not a negative factor in her naturalization, as it did not affect her eligibility to be categorized as an adult, unmarried child of a refugee, but the fact that she did not truthfully answer the question, if known, would factor into an assessment of whether she possesses the good moral character needed to naturalize.

The justification for this syndrome is usually:  “But since it didn’t happen in America I thought it didn’t count.”  My response to this is that USCIS wants to know about your conduct before you came to the United States, not just after you arrived.  If we take this thinking to its logical, ludicrous conclusion then the very fact of the your birth abroad should not be taken into account, or your education and work experiences attained abroad should not be credited to you, and you should not now be eligible for an immigration benefit.

Sometimes, the applicant’s response to my saying that we need to disclose events that happened abroad in response to direct questions is:  “But no one will ever know.”  In many cases, this may be true.  It is difficult to prove the existence of a marriage or birth of children that occurred in another country when USCIS has no inkling that they exist, and even criminal convictions may not show up on national criminal background checks.  However, failure to disclose such facts is lying or deliberate misrepresentation, and I am not going to let my client lie on an application.  If my refusal to lie on behalf of my client is a problem then the applicant is welcome to seek other counsel.

I also point out, for those who seem to be motivated by self-interest more than the desire to act with integrity, that if for some reason the truth comes out later then this becomes a potential issue of immigration fraud and the applicant may be stripped of all immigration benefits (a visa, lawful permanent resident status, citizenship) that were issued based in part on that lie.  Sometimes that argument is persuasive to the applicant.  Sometimes not.

Occasionally, I think clients regret telling me the truth, thinking it would have been so much easier to lie to me as well as to immigration authorities.  Be that as it may, once I know something I am not going to pretend not to in order to continue a case.  And, if you get in the habit of lying to your attorney you will likely get incorrect advice in response, based on your incorrect information.

As you can tell, I don’t have much sympathy for this type of selective amnesia.  You are who you are, and you did what you did, and I am not going to help you lie to avoid the consequences of your conduct.  I will help you address your actions, and put them in the best light possible, and apply for any forgiveness that is available, but I will not help you deceive your way out of the consequences of your actions.

So, when you are asked a “Have you ever…” question, please don’t insert your own spin on it.  Just answer the question as it stands.

Deferred Action for Childhood Arrivals – a mixed blessing

September 4th, 2012 by Djung Tran

On June 15, 2012, the United States Department of Homeland Security announced the introduction of a program known as Deferred Action for Childhood Arrivals.  The new program has been both hailed as a positive step for undocumented immigrant youth, reviled as a run-around Congress by the Obama administration, and received by immigration lawyers as a mixed blessing.  The program, known as “DACA,” which started accepting applications as of August 15, 2012, would grant two years’ of work authorization and a contingent promise not to attempt to deport during that period those undocumented immigrants who, on June 15, 2012, came here before age 16, are not yet 31 years old, are attending or have completed high school or served in the U.S. armed forces, and have a clean criminal history or one that is fairly minor in character.  I won’t get into the nuances of the criminal provisions here, which could be a whole other posting.

DACA is not a statute enacted by Congress and signed into law by the President.  It is not a regulation promulgated by an administrative agency after a period of public comment.  It is a policy put into effect by the executive branch acting through its authority to choose how to implement statutes and regulations.  An administrative agency has some scope of discretion in how it enforces the statutes and regulations that govern its mission, and under the Obama administration the Department of Homeland Security has interpreted its enforcement priorities to mean that it will direct its finite resources towards violent and repeat criminals and serious immigration violators first, and put those whose only sin is having come to the United States as children – often without any choice in the matter, who have lived good lives since then and become valued members of their communities – last.

Although there appears to be some confusion about what DACA is, let’s not mislead anyone:  DACA does not provide a path to lawful permanent resident status or U.S. citizenship.  It does not even provide legal immigration status.  What it provides, and the only thing it provides, is work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation.  As I stated to Michael Matza, a reporter at the Philadelphia Inquirer, on this very issue, you get employment authorization, which is very valuable, but the downside is that you raise your hand and say, ‘Here I am,’ and give your information to the government.  Before, you were under the radar.

Another consideration is how state and local governments will respond to DACA.  Some state government officials, such as in in Arizona and Texas, have already vowed to close off state-level benefits such as driver’s licenses to DACA beneficiaries, in protest of a perceived Obama administration run-around Congress’ refusal to pass the DREAM Act.  (The DREAM Act is proposed legislation that would provide a path to lawful permanent resident status to undocumented, educated immigrant youth with clean criminal records.  If you want to read more about it, here is a good place to start:  American Immigration Council.)

To even get approved for DACA, applicants must face certain thorny issues of proving eligibility.  For undocumented immigrants who have been living quietly away from the attention of governmental authorities, and who have been leery about providing any perceived authority figure with identification information, proving that they resided or went to school in the United States at a certain time and age can be difficult.  And, of course, there will be those who do not meet the timing requirements but who will try to falsely prove that they do anyway.

The benefits, work authorization and a valid social security number and a contingent promise of deferred action with regard to deportation, while of real value to those who have lived here most of their lives but cannot legally work in the United States, must be weighed against the potential cost of voluntarily identifying oneself to a government that may change its mind about DACA at any time.  If you read through the official statement about DACA on the USCIS website you will see this ominous sentence:  “This policy, which may be modified, superseded, or rescinded at any time without notice, is not intended to, does not, and may not be relied upon to create any right or benefit, substantive or procedural, enforceable by law by any party in any administrative, civil, or criminal matter.”

So, while DACA is a welcome addition to the immigration benefits available to those known as DREAM Activists, it is quite limited in scope and the pros and cons of filing an application need to carefully weighed before submitting the application.  Here at Tran Law Associates, we will counsel you on the benefits and costs of DACA before signing on to represent you.  Although the decision of whether to apply for DACA is, of course, your decision to make, it is our responsibility when you come to us for help to make sure that it is a fully informed decision.

Asian exceed Latinos in immigration to the United States

September 3rd, 2012 by Djung Tran

You may have noticed it yourself — the number of documented Asian immigrants to the United States has exceeded that of Latino immigrants.  A recent Pew study has documented the numbers.  The study finds that the current crop of Asian immigrants tends to be both better educated than other immigrant groups and better educated than their peers in their home countries.  Asian immigrants also will be more likely to enter the United States through employment-based immigrant petitions than other immigrant groups.

Although my family entered the United States on a family immigrant petition, my mother, who was a computer programmer knowledgeable in Pascal, COBOL, and ADABAS-Natural – computer languages highly sought after in the United States in the late eighties and early nineties – was also a potential candidate for an employment-based immigrant petition.  In other ways my family fits the trend documented by the Pew Study.  My father has a medical degree, my mother a law degree.  My brother and I were too young to have accumulated advanced degrees at the time we came to the United States, but I eventually got my bachelor’s and law degree, and my brother has a bachelor’s and a master’s and is working on a second master’s.  My parents and I were recently mentioned, among others, in a Philadelphia Inquirer article about the changing trend in immigration.

However, trends can sometimes obscure individual realities, and serve as a convenient excuse to ignore vulnerable, needy populations.  While currently arriving immigrants from Asian countries may include a high proportion of highly skilled and educated individuals, this does not mean that all Asian immigrants are so well off that they do not need help and outreach.  Asian immigration over the history of America has included waves of laborers and refugees as well as educated professionals.  Refugee populations in particular can be particularly vulnerable when learning how to live in a new country.  Refugees generally do not arrive in an orderly, planned fashion, bringing with them money and resources and perhaps English language ability already.  Refugees can arrive in a new country with a few meager belongings, few or no relatives with them or already in place to support them, few work skills, limited education, and not knowing how to speak the language of their new home.  Asian refugees often come from Vietnam, Cambodia, Laos, Burma, Indonesia, Pakistan, Afghanistan, and East Timor.

Refugees are displaced people.  People who can no longer live in their home countries for fear of losing their lives or those of family members.  They often need intensive support services from government, private non-profit agencies, and informal community networks to adapt well to their new homes.  Sometimes support services are available, and sometimes they are not, and refugees have to make do.  It may not be too surprising then, that some Asian immigrants, especially those from refugee backgrounds, still struggle to get by and still need support services.

While I am glad to think that more and more of the incoming Asian immigrants today are highly skilled and educated, and will probably become valued and sought-after employees and dynamic entrepreneurs, I know from personal experience that this is just one facet of Asian immigration.  Like most things in life, while labels and categories are convenient to help organize our thinking, they should be a guide only, and not become rigid walls that stop us from recognizing the real factors that affect people’s lives.

A tribute to a Vietnamese mother on Mother’s Day

May 13th, 2012 by Djung Tran

One of my favorite news magazines is The Week.  I was an early subscriber, when it was a very slim compilation of the week’s news, opinions, and reviews  from diverse sources, and had very few ads.  It has bulked up since then – mostly with ads, but still retains its essential character of delivering relevant snapshots of what’s happened in the past week.

This week, The Week excerpted some tributes to mothers from This I Believe (“The invaluable weight of a mother’s gifts”), a collection of essays from youths and adults about their core va;ies and beliefs.  The third story is about a single mother of two little girls who set off to escape Communist Vietnam, and the courage it took to make that decision and see it through to completion – acceptance into the United States as political refugees, and building new lives here.  For those of us who were once boat people ourselves it will bring back poignant, wrenching memories of journeys marked by fear, uncertainty, and also strength and bravery.  For others, it will provide a glimpse into what it means to be part of the Vietnamese diaspora known as the “Boat People.”

“Crossing a Cultural Gulf”

May 10th, 2012 by Djung Tran

Here’s a story that I found interesting.  It is about the Vietnamese American community in the Gulf Coast in the aftermath of Hurricane Katrina and the Deepwater Horizon oil spill:  http://www.napaba.org/uploads/napaba/Fall%202011.pdf (see cover story in the Fall 2011 NAPABA newsletter).

Although I have not met Mai Phan in person, we have spoken on the telephone and she has always done her best to be helpful when I need insight into a California legal issue.

I visited New Orleans recently, and got a superficial glimpse of the tight-knit Vietnamese American community in New Orleans East (also known as Versailles).  It was interesting to see a place in the United States where Vietnamese was as ubiquitous if not more so than English on storefronts and signs everywhere.  However, in reading “Crossing a Cultural Gulf,” I was also troubled to think that this community, whose roots in the Gulf Coast go back to the Fall of Saigon (1975), may still consist of long-term immigrants who have not learned English and thus are dependent on charity and language access services when they need to access services outside of their ethnic enclave.

Let me profess my ignorance here.  I don’t know the make-up of the Vietnamese American community on the Gulf Coast.  That is, I don’t know what percentage of the population are first wave immigrants, and what percentage are more recent immigrants who have not yet had the time and opportunity to learn English.  But, for the immigrants who have long established their homes here, to fail to learn English along the way is folly.  You become dependent on others, and vulnerable to scam artists who promise to  help you.  I have heard sob stories about Vietnamese “guides” who help people open bank accounts and apply for government benefits only to steal money or identities.

Over and over again, I have heard immigrants tell me (sometimes through interpreters) that they are too busy working to learn English.  I do not doubt that these individuals lead busy lives, working hard trying to make ends meet and raise their families as best they can.  But to fail to learn English is a failure to invest in the future.  Not speaking English means you must either work a labor-intensive job that does not require strong communication skills, or you work in a family business where it doesn’t matter that you cannot communicate in the common language of society around you.  Either way, you are limited in your options.  Too many immigrants, especially older immigrants and those with children who can speak English, decide that it will be the next generation who will move to that next level of prosperity that requires fluency in English.  These immigrants don’t believe that they themselves can progress any further.

Another handicap of not speaking English is that when you need legal help, if you are not eligible for legal aid (free legal services to the indigent) then the chances of your getting free interpretation services along with your legal services are small.  In that case, you need to find a lawyer who already speaks your language; and if you can’t find a lawyer specializing in the matter you need help with then you have to find an interpreter.  Maybe you have a family member who is old enough to have been raised in your native language but young enough to have learned English as a child and thus is fluent in both languages.  But the skills of such interpreters vary wildly, and interpreting legal terms can be tricky.  Chances are, you will not get the full import of what your lawyer is trying to tell you, and may make important decisions based on an imperfect understanding of your rights, obligations, and options.  Paying a professional or certified interpreter can add significantly to the cost of addressing the matter.

I speak Vietnamese, and I value that skill.  In our world today, the more languages one can speak the more doors are open to you.  Immigrants who live in an English-speaking country but fail to learn English are refusing to cross a gate to more opportunities.  Which is a sad irony, because don’t most of us immigrants move to a new country in search of new opportunities?  (And hence the name of this blog.)

In the Philadelphia area, several nonprofit organizations provide English language classes to immigrants, free of charge.  All it costs is your time and effort.  The Welcoming Center for New Pennsylvanians is one such resource, as is Boat People SOS, Delaware Valley Branch.

Tran Law Associates helps Vietnamese immigrants file for immigration benefits.  If you need assistance with an immigration matter, please contact us at (215) 690-1933, or at info@tranlawassoicates.com.

The elusive tourist visa

March 16th, 2012 by Djung Tran

I am repeatedly surprised by stories of denials of B-2 tourist visas.

In one case I came across, the reasoning of the consular officers who repeatedly denied this application confounds me.

I heard about this case from my friend, a U.S. citizen originally from El Salvador.  She has invited her elderly father to come visit her and her family here in the United States.  He has applied for his tourist visa twice, and be denied twice, and the only reason given is “lack of sufficient ties to home country.”

Her father was turning 75, and for his 75th birthday my friend and her brother, also a U.S. citizen, wanted to take him on vacation in the U.S.  My friend’s father has been retired for several years now, and before that had been an assistant principal at a junior high school.  He was married and lived with his wife, my friend’s stepmother.  He had retired to the countryside and lived in what sounded like an idyllic little cottage.  His income was his pension; rental income from his house in the city, which he had rented out; and a little extra income from the produce that he and his wife grew in their orchards.  He is not wealthy, but he was comfortable.  All this information was presented at his second visa interview, along with a letter from my friend saying that she had invited him to come visit her, and she would be looking after him and, incidentally, she could petition for him if he wished but he did not wish it.

It is true.  If my friend, or her brother, wanted to, they could petition for this gentleman to immigrate to the United States as the father of a U.S. citizen and, barring any issues in his background such as certain criminal conduct, he could be here as a legal permanent resident in  six months to a year.  But this gentleman has no interest in living in the United States.  He is happy where he is and, at this late stage in his life, he is not interested in uprooting his comfortable situation to relocate to a new country.  He would like to visit his children and grandchildren in their homes, however.  Unfortunately, he has been denied the ability to do so.

Consular officers deciding tourist visa requests are tasked to keep in mind — through the guidance provided by the U.S. Department of State’s Foreign Affairs Manual — that the general policy of the United States is to encourage tourism and the building of cultural and economic ties with people from other countries.  So, the default position, when evaluating an application, should be:  Let this person come to the U.S. to see their friends and family, visit tourist destinations, and spend money on our economy.  It is only when the applicant fails to show strong ties to their home country, and thus by implication is more likely to want to stay in the U.S. rather than return home, that the possibility of denying the visa should be contemplated.

However, from my experience with contesting denials of B-2 visas, the default premise often seems to be opposite to that propounded by the Foreign Affairs Manual.  The thinking of too many consular officers seems to be:  “Prove to me why I should let you be a tourist in America,” rather than, “You should be a tourist unless there’s a good reason not to be.”

In this particular case, the denial of this gentleman’s tourist visa application was even more surprising because of his age, as most tourist visa denials seem to be to people who are young, single, not too well off, and who don’t yet have spouses or children to tie them to their home country.  The rationale for most denials seems to be that this young (or relatively young) single person without family obligations and/or a good job and/or very comfortable home to come back to will most likely overstay their visa and maybe marry a U.S. citizen as well.  Sometimes it seems like you have to be at least two out of the three:  older and married, older and wealthy, or maybe just wealthy, to pass the visa issuance test.

Even under this rubric, my friend’s father doesn’t fit in the mold because, although he is not wealthy, he is older and married.  The most reasonable explanation I can think of for the denial is that the consular officers both must have separately concluded that he is desperate to move to the United States, despite his age, comfortable retirement, happily married status, and the fact that he could legally move here without being put on a waiting list if he wanted to.  Why they could have reached such a conclusion is beyond me.  The end result, whatever the reasoning, is that my friend cannot host her father in return for all the times that her father and hosted her and her family in his home.  It saddens her, but she can always go and visit him, and spend her tourist dollars in El Salvador rather than have her father spend his tourist dollars here. The efforts of a qualified El Salvadoran immigration attorney may shed new light on the situation, but for now they’ll simply have to work with this arrangement.

“Do you have anyone I can marry?”

February 3rd, 2012 by Djung Tran

For those of you have who found true love with a foreign national, it can be bewildering how much paperwork you have to file to get permanent resident status for your spouse so that you can both live together here in America.

You may think, “We love each other and want to live together.  This is a real marriage.   Just how much evidence do we have to submit to get this done??”

Well, I just got a call the other day from a gentleman who was offering himself up for marriage, asking if I knew of any foreign ladies in distress in need of a green card.  This gentleman was a little surprised that my office was not interested in his services, and responded to my “Thanks, but, no thanks,” with a playful, “But who will ever know?”

Hah!  For those with real marriages whose green card applications are stuck in immigration limbo, you know that US Citizenship and Immigration Services and the Department of State aren’t such pushovers when it comes to proving a real marriage.  There are plenty of real marriages where husbands and wives have been living separately for years waiting for immigrant visas to be approved.  I’m sure these applicants would have plenty to say to the gentleman who was so ready to enter into a fraudulent marriage.

So, for all you international couples in love, let me warn you:  You may know that your love is real, but there are unscrupulous scam artists out there marrying for money who make proving the validity of your marriage that much harder.

If you would like expert assistance with the immigration process, Tran Law Associates is happy to help you out.  We understand what counts as strong evidence of a valid marriage and can help you make the best possible submission for your application.  You can contact us at (215) 690-1933, or check us out at www.tranlawassociates.com.