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The Golden Door

News and views on immigration law

Posts Tagged ‘naturalization’

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.

 

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.

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

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