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The Golden Door

News and views on immigration law

Posts Tagged ‘deportation’

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.

Review of “De Novo – mas alla de las fronteras (beyond borders)”

Friday, March 29th, 2013

I saw the play “De Novo – mas allas de las fronteras (beyond borders)” last night.  It was a beautiful, touching, realistic depiction of what some undocumented immigrant youth face when they are placed in deportation proceedings, produced by Houses on the Moon theater company.

There are so many different meanings of “de novo” that resonate throughout the play.  From a lawyer’s perspective, it is a term of art meaning review by a court from the beginning, without relying on prior adjudications, and assessing all evidence afresh rather than through the lens of another adjudicator’s decision.  In a more general sense, it means taking things from the beginning, or starting anew.  The play invites us to both look at the life of one undocumented immigrant youth from the beginning, and to think about the roots of the circumstances of his life, and the immigration system that we have and how it is should be reformed.  It made me think, “What controlled this person’s life?  What could he have done given his circumstances?  Could he have made different decisions?  What are our responsibilities for the circumstances of his life?  What is the U.S. government’s responsibility here?”

“De Novo” is about Edgar Chocoy-Guzman, a real person.  The play uses language taken from real documents, including letters, psychological evaluations, and court transcripts.  He was born in Guatamala in 1987.  He never really knew his father.  His mother left for America when he was an infant.  He lived in his grandfather’s house but no one really parented him.  He joins the gang Mara Salvatrucha and then leaves it, and leaves Guatemala because the gang has put a hit on him.  He joins his mother in Los Angeles and ends up joining another gang.  He is then placed in juvenile detention and then, after he has served his time, instead of being released he is transferred to immigration detention and placed in deportation proceedings, at age 15.  Knowing that he would still be a target of assassination back in Guatemala, he applies for asylum.

The scenes of immigration court proceedings were spot-on.  This is not your Law & Order polished court scene.  The court scenes in “De Novo” were just like the real thing.

There was a panel discussion after the play, and the moderator took the stage visibly emotionally affected by the performance.  I won’t tell you any more as it would spoil the play for you.  All of the actors were excellent.  The fact that the words used in the play were the actual words uttered or written as Edgar’s story unfolded in reality made the story even more affecting.  That this is a real story makes it even more immediate, compelling and thought-provoking.  This is about someone’s actual life and experience.  If you get the chance to see this, I highly HIGHLY recommend that you go.  If you know people who are hostile to immigrants, bring them along.  Let them see what it’s really like to be an unauthorized immigrant in America, instead of thinking of unauthorized immigrants one-dimensionally as nothing more than law-breakers who need to be deported.


Immigration Reform – hopeful and wary

Saturday, January 26th, 2013

In immigration circles there’s a feeling in the air that we may actually get comprehensive reform this year.  President Obama has clearly put his support behind it, and a small group of Democratic and Republican senators are working on hammering out a core set of principles that both sides can agree on prior to drafting any proposed legislation.

Immigration reform can mean a lot of different things, depending on what you think is wrong with the current system.  Some people think it is too harsh, penalizing infractions of law in ways that are disproportionate to the violation and tearing apart families, and in doing so often hurting U.S. citizens.  Others think it is too lenient, not holding people adequately accountable for violations or deterring future violations.  When we talk about immigration laws, we have to think about authorized immigration – the foreign nationals who come (or want to come) to the United States on visas, whether to visit, work, go to school, or who permanently immigrate here based on family ties or work skills; and unauthorized immigration – the foreign nationals who enter without inspection or enter using a visa and then overstay, becoming unlawfully present.

There is plenty of room for improvement in our existing scheme of distributing visas, especially if one thinks, as I do, that we should increase the number of authorized immigrants we permit to join our ranks.  One of the most frustrating issues in immigration is the visa quota system, which creates huge backlogs in several categories of both family and employment-based immigration.  Backlogs of two to 24 years exist in the family-based quota-limited visa categories.  Backlogs of five to ten years exist in the most popular employment-based visa categories.  (See Visa Bulletin.)  These backlogs undermine the policy considerations that created these categories of visas in the first place:  promoting family reunification and helping U.S. businesses employ qualified workers when such cannot be found in the existing pool of local U.S. workers.  The promise of family reunification or employing qualified workers from abroad becomes effectively meaningless when one has to wait an average of 12 years to bring a sister and her family to the United States, or a business has to wait six years to hire the worker it needs.

While these considerations are particularly frustrating to those of us who deal with immigration on a daily basis, the more attention-grabbing aspect of immigration is the unauthorized immigrant population.  There are an estimated 11.5 million unauthorized immigrants in the United States, according to the U.S. Department of Homeland Security.  Declarations that this population should be deported or should  “self-deport” are unrealistic to say the least.  These are people who have built their lives here, and whose children, whether born in the United States or not, have grown up here and know America as their home.  Most people left their native countries, which was no small step – leaving family, friends, everything that is familiar and dependable – because they could not see any hope in the future for themselves and their children there.  Yes, they violated our immigration laws to come here.  Yes, we should impose a consequence for that violation.  But it is unrealistic to try to identify and then lawfully deport all 11.5 million or more unauthorized immigrants.  Making life so unpleasant for unauthorized immigrants that they will leave of their own accord – well, what level of unpleasantness is enough to convince someone to return to a place where they had no hopes for their future?  And what level of unpleasantness are we willing to stomach to achieve this goal?  I think the answer is that we, as a nation, believe in human rights, and to get a person to the point where he or she is willing to self-deport would require suspending our respect for human rights.  I have to believe we are not ready to do this.

Whatever your view on the appropriate penalty to be levied for unauthorized immigration before the immigrant can get his or her green card, one unfortunate reality for this population is that its members can be uniquely vulnerable to scammers.  Many unauthorized immigrants, even those who have lived in the United States for many years, do not speak English.  (I’ve already expressed my views, as an immigration attorney, on long-term immigrants who still do not speak English in this blog.)  Those who do speak some English may still rely on media sources in their native language for news.  Already, I am hearing rumors of ethnic language newspapers reporting that a route now exists to lawful status for unauthorized immigrants.  For someone without their legal papers, including work authorization or a driver’s license and social security number, getting lawful immigration status can mean being able to bank instead of always using cash, being able to drive legally instead of relying on others or driving in fear of being stopped by the police, and being able to go to the police for help without fear of being reported to immigration authorities, among many other things.  For people in this situation, the hope of getting a green card can be used against them.  Unscrupulous ethnic “services brokers” promise that they can get the immigrant their papers if they pay a (usually exorbitant) fee.  Filing a petition for a green card when you are not eligible can result in being placed in deportation proceedings.  So the prospect of comprehensive immigration reform, including a path to lawful status for non-criminal unauthorized immigrants, while a reason for cautious optimism, also creates opportunities for hucksters to ply their trade.  For those of you who know unauthorized immigrants (which of us does not?), please tell them to be careful of promises of a “guaranteed green card” if they just pay the fee.  No such thing exists.


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.

Deferred Action for Childhood Arrivals – a mixed blessing

Tuesday, September 4th, 2012

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.

New York Gov. Paterson’s pardon – a valid exercise of state authority on immigration matters

Thursday, November 11th, 2010

In comparison to Arizona’s S.B. 1070, a state law that attempts to make the enforcement of immigration violations a state function, New York’s governor, David Paterson, has modeled a way that states can impact immigration matters in a constitutionally permissible way.

Some basic background information:  Criminal law in the United States exists at both the federal and state level.  There are federal crimes and there are state crimes.  People living in the United States who are not U.S. citizens (even long-time legal permanent residents) can be deported if convicted of certain crimes, including state criminal convictions.  A pardon, however, can often erase the effect of that conviction for immigration purposes.

A pardon for a state criminal conviction is squarely within the authority of the state governor.  In an effort to prevent the deportation of individuals who have, since their convictions, transformed themselves into worthy and contributing members of society, Gov. Paterson has set up a panel to review these cases for eligibility for pardon.  For most if not all of these individuals, this is their only chance, under current immigration law, to stay in the United States, where they have lived most of their lives and where they have established families and become part of their local communities.  In some cases, individuals have already served out their criminal sentences but still face deportation.

A spokesperson for the Federation for American Immigration Reform (FAIR), a group that favors reducing immigration levels, responded to this initiative by stating, “as a general rule, we would be opposed to governors or other local officials stacking the deck so that people who could legitimately be deported get to remain in the country[,]“ and further, that the Governor was “circumventing Congressional authority.”

Let me address each point raised by FAIR in turn.

The first objection is that anyone who has been ordered deported, regardless of their current circumstances or the harshness of the penalty on the individual, should be deported.  This hard-line position does not care about individual circumstances.  Every deportable alien is a throwaway person, not deserving of case-by-case treatment.  This position cannot take into account the benefit that the individual might bring to the community in which he or she now belongs, or the cost and pain associated with tearing that individual away from that community.  It reflects an attitude that rules must be blindly and rigidly applied and should always be bright-line and clear, black and white.  Basically, “You break the law, you’re out of here.”

So, how has this approach worked for us in our schools, with our Zero Tolerance policies?  Every week, I read of some new ridiculous school action driven by zero tolerance philosophy that punish the very children that it is supposed to protect.  The kid whose grandmother packed him a knife to cut his birthday cake who ran afoul of a no-weapons policy comes to mind, and there are countless other examples.  Children end up suspended or expelled because of actions that happen to fall within the zero tolerance zone, but who were never intended by the original proponents of the rules.  Applying the same thinking, that is, if-they’re-deportable-then-let’s-deport-’em approach, we end up deporting people who might remain in the country by way of a gubernatorial pardon.  These individuals may be legitimately deportable but they also have a legitimate shot at changing their eligibility for deportation.  There is nothing inherently wrong with exploring an available legal option.

As for the second objection, that Gov. Paterson is circumventing federal congressional authority, I wonder if FAIR raised this same objection to AZ S.B. 1070?

Most if not all state constitutions grant governors the authority to issue pardons and don’t place too many restrictions on how they can use this power.  This is a provision meant to inject flexibility in what might be otherwise inflexible situations.  Gov. Paterson is well within his authority to choose to exercise this authority generously.  Federal immigration law does not forbid state governors from exercising their right to pardon individuals for state criminal convictions and any attempt to do so would be a violation of states’ rights.

For FAIR to say that Gov. Paterson’s actions circumvent congressional authority, well, this is just not true.  What FAIR really means, I would hazard, is, “We don’t like it when government acts to help immigrants who have shown themselves to be unworthy.”  Of course, it doesn’t seem to matter to FAIR what the overall weight of an individual immigrant’s conduct over his or her lifetime might be, just that that person landed himself or herself in jail in the first place.  Following this philosophy, we really need to build a lot more prisons (I think the prison lobby has this well in hand), because there should be a lot more people in prison and who should be kept in prison for the rest of their lives because at some point they did something bad, hurt someone, and broke the law.  No one is salvageable.  Everyone must pay for their mistakes, and keep paying until they are dead or gone.

From my point as view as an immigration lawyer, I respectfully suggest that this zero tolerance approach is not wise nor humane.  For those of you who subscribe to the FAIR philosophy, I urge you to acknowledge that when we talk about immigrants we are dealing with fully-fledged human beings, not just ‘aliens.’  A person can do bad things and yet become a good person.  Some of these individuals have already served out their sentences.  Should they keep on paying for their mistake after they have already paid?  Sometimes second chances are warranted.  Deportation for those who only know America as their home can be a harsh fate, and hurts not only the deportee but their family members too.  No one is arguing that every immigrant convicted of a crime should be pardoned.  Rather, Gov. Paterson is employing an approach that weighs the individual’s crimes against his good deeds.  The pardon power is already embedded in the state constitution, and is a far cry from a circumvention of congressional authority.  Rather, it is the valid exercise of state authority that happens to affect immigration status.

Djung Tran, Esq.

Tran Law Associates

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

Tam Tran: Eulogy for a DREAM Act activist

Wednesday, October 6th, 2010

If you keep up with immigration news, you’ve probably been hearing a lot about the DREAM Act, and the most recent — and unsuccesful — push to get it enacted.  DREAM stands for the “Development, Relief, and Education of Alien Minors.”  This post, however, is not about the DREAM Act itself, but about one young woman who would have been a direct beneficiary of the DREAM Act had it become law.

This may be old news to those who keep up with DREAM Act stories, but on May 15, 2010, two DREAM Act activists were killed in a car accident:  Tam Ngoc Tran, age 27, and her good friend, Cinthya Nathalie Felix Perez, age 26.  It is Tam Tran’s story, in particular, that spotlights the legal limbo that those who come to the United States as children and grow up calling the United States home can find themselves in, although luckily there are immigration lawyers available to assist in such cases before they come to such a tragic point.

I’ll call her Tam, as it feels strange to call someone else “Tran” when that’s my name too.

Tam’s parents, Tuan Ngoc Tran and Loc Thi Pham, escaped Vietnam only to become refugees in Germany after being picked up at sea by the German navy.  Tam and her brother were born in Germany, but because Germany does not grant birthright citizenship neither she nor her brother are German citizens.  When Tam was six, her family came to the United States to be near other relatives already living here.  Upon their arrival, her parents applied for asylum based upon their fear of being persecuted for their anti-Communist political views if they were to return to Vietnam.  Tam’s father had been forced to attend a “re-education” camp before he and Tam’s mother had fled Vietnam.  For those of you who don’t know what “re-education” means, let’s just say it’s not fun and games.

Tam’s parents were denied their asylum application, but eventually, after further lengthy proceedings, were granted withholding of deportation.  This meant they would not be sent back to Vietnam because they would probably be persecuted if returned there.   U.S. immigration authorities then tried to get the family to return to Germany, but Germany refused to issue them visas.  After all, they weren’t German citizens.  So the family was effectively in legal limbo:  they did not have permanent resident status, but they were definitely documented aliens — Immigration knew exactly who they were and where they lived, and issued them work authorization documents on a regular basis.

So Tam grew up in Garden Grove, California, graduated from Santiago High School, then UCLA with honors, and then went on to doctoral program at Brown University.  She was a filmmaker and an activist, testifying on May 18, 2007, before the House Judiciary Committee’s Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law, in support of the DREAM Act.

In what Immigration and Customs Enforcement (“ICE”) claims is a random coincidence, three days after Tam’s congressional testimony about her family’s plight, ICE agents staged a pre-dawn raid on her family home, arresting her parents and her brother for being “fugitives from justice.”  Tam wasn’t home at the time but if she had been she, too, would have been arrested.  As far as I can tell, ICE is still trying to deport the family back to Germany.  There is no hint of any criminal actions on the part of any family members.  ICE’s goal appears to merely be to clean house — that is, to deport any deportables and check them off their list.  An ICE spokesperson said that, before, Germany had refused to issue visas when the Trans themselves had made the request; this time, the U.S. government would be making the request, which would more likely result in approval.  A judicious use of immigration resources, indeed.

In researching Tam’s story, I came across a tribute to her on the OC Weekly, “A DREAM Act Undeterred.” Although I learned a lot about Tam and her hopes and dreams from this piece, there is one bit that I have to quibble with.  The article characterized her as undocumented.  She was not undocumented.  She just (just!) did not have permanent resident status.  The only thing that her parents might be guilty of in terms of violating U.S. immigration law was bringing their family to the United States on visitor visas in order to apply for political asylum.  Once here, though, her parents obeyed all the immigration laws and followed all the immigration procedures in their quest for asylum.  The end result was that they did not obtain permanent resident status, but neither were they actually ordered deported.  They remained in the United States on the U.S. government’s explicit permission.  Tam was not an “illegal alien.”  She was allowed to stay in the United States because there was no where that she could safely be sent back to.  But without permanent resident status many of the avenues of support, financial and otherwise, for bright young students and budding young professionals like herself were simply not available to her.

Not everyone who would qualify for relief under the DREAM Act is as sympathetic a figure as Tam.  But her story is an undeniable part of the DREAM Act conversation, and her death at a young age is a loss to America.  I never knew Tam, but I believe that she would have done great things in this country, whether or not she ever become a permanent resident or, eventually, the ultimate goal, a citizen.  I think America would have been proud to claim her as one of its own.

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