Wednesday, September 23, 2015

Indiana Senate Democrats Proposing State Law Changes To Benefit Undocumented Aliens

Indiana Senate Democrats announced several state law changes they propose making during the 2016 legislative session related to education, driver's licenses and health care for the benefit of undocumented aliens. Among the items to be considered are the following:

  • Permitting undocumented aliens who qualify for the federal Deferred Action for Childhood Arrivals ("DACA") benefit to receive in-state tuition rates at state universities after three years of continuous attendance;
  • Allowing the Bureau of Motor Vehicles to issue driver's licenses to anyone regardless of their citizenship status or legal status in this country as 10 other states, including neighboring Illinois already do; and
  • Providing undocumented aliens access to kidney dialysis care through the state's Medicaid program instead of waiting for end-stage renal disease to take hold before qualifying for assistance.

Wednesday, September 16, 2015

Temporary Protected Status Designation For Yemen Nationals

The Department of Homeland Security announced that nationals of Yemen are eligible to apply for temporary protected status ("TPS") as of September 3, 2015 due to widespread conflict and a resulting severe humanitarian emergency. Applications for TPS status will be open through March 3, 2017.

Any Yemeni nationals currently in the United States are eligible to apply for TPS. Eligible applicants are allowed to remain legally in the United States and obtain permission to work. Continuous physical presence in the United States since September 3, 2015 is required to obtain the benefit of the designation. Applicants are subject to a background check. Persons with certain criminal records or deemed national security threats are not eligible for the benefit.

Thursday, August 20, 2015

Birth On Military Base Does Not Make One A U.S. Citizen At Birth

A recent 5th Circuit Court of Appeals, Thomas v. Lynch, provided an interesting discussion of the legal status of children of U.S. soldiers born on military bases abroad. Jermaine Amani Thomas fought an immigration judge's determination that he was removable from the country based on three prior criminal convictions, claiming he acquired U.S. citizenship at birth under the 14th Amendment because his birth took place on a U.S. military hospital at a base in Germany. The 5th Circuit rejected his argument of birthright citizenship.

Thomas' father immigrated to the United States in 1977 and enlisted in the U.S. Army in 1979. In 1984, he became a naturalized citizen. Thomas' mother, a Kenyan citizen, gave birth to him at a military hospital in Frankfurt, Germany in 1986. Although his father was a U.S. citizen at the time, the immigration court found Thomas' father had not resided in the U.S. for the minimum 10-year residency period (current law requires 5-year minimum) required at the time of his birth under 8 U.S.C. 1401(g) to enable his son to acquire citizenship at birth under the statute, even after crediting his father's time spent abroad in the military. Nonetheless, Thomas argued the military base where he was born allowed him to claim birth within the U.S. under the 14th Amendment despite statutory language and Foreign Affairs Manual policies to the contrary.

The 14th Amendment provides that "[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof," are citizens. The Court explained there are only two sources of citizenship: birth and naturalization. “Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person ‘born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization," the Court stated, quoting the U.S. Supreme Court's decision in United States v. Wong Kim Ark. “Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress.” The Court observed that if Thomas' father had satisfied the residency requirement set forth in 8 U.S.C. 1401(g), he would have acquired citizenship at birth by statute despite being born abroad and having one parent who was not a U.S. citizen.

Whether birth on a military base abroad satisfied the 14th Amendment birthright citizenship was a case of first impression for the 5th Circuit. The Court cited other appellate court decisions which held that persons born in U.S. territories did not constitute birth in the U.S. for purposes of the 14th Amendment's citizenship clause. In each of those cases, the circuit court opinions relied on the Supreme Court's holding in the so-called Insular Cases where the Supreme Court distinguished between incorporated and unincorporated territories. Incorporated territories are those territories that were destined for statehood at the time of their acquisition as opposed to unincorporated territories like the Philippines once was that were not destined for statehood. While persons within the unincorporated territories are afforded "fundamental constitutional rights," birthright citizenship is not a right the inhabitants of such areas acquire because of their status.

Thomas argued that the decision in Wong Kim Ark supported his contention he was within the United States for purposes of the 14th Amendment since Ark was born to Chinese nationals in San Francisco before California had been admitted to the Union as a state. The 5th Circuit found the case inapposite because the question of the territorial scope of the citizenship clause was not before the Supreme Court in Wong Kim Ark.  The Court found that a military base abroad was in the nature of an unincorporated territory and declined to extend the citizenship clause's reach to Thomas despite his insistence that such a ruling effectively left him stateless. According to the facts of the case, Thomas had been admitted to the U.S. in 1989 on a visa that listed his nationality as Jamaican. It's unclear how he wound up there, but presumably his Kenyan mother, a lawful permanent resident of the United States, took him there to reside at some time following his birth without making any effort to naturalize him as a U.S. citizen.

Monday, June 1, 2015

Supreme Court Holds That State Conviction For Drug Paraphernalia Is Not Removable Offense

A lawful permanent resident, Moones Mellouli, found himself in immigration court facing removal from the country after he pleaded guilty to a misdemeanor offense in the state of Kansas for possession of drug paraphernalia to store or conceal a controlled substance. An immigration judge ordered Mellouli deported under 8 U. S. C. §1227(a)(2)(B)(i), which authorizes the deportation (removal) of an alien “convicted of a violation of . . . any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” The sole “paraphernalia” Mellouli was charged with possessing was a sock in which he had placed four unidentified orange tablets. Mellouli admitted the pills contained in the sock were Adderall; however, the crime for which he was convicted was not tied to a specific type of substance. In a ruling today, the Supreme Court of the United States has reversed the immigration court's decision, holding that Mellouli’s Kansas conviction for concealing unnamed pills in his sock did not trigger removal under §1227(a)(2)(B)(i).

The Supreme Court in Mellouli v. Lynch applied the categorical approach in determining whether a state conviction renders an alien removable. The categorical approach looks to the statutory definition of the offense of the conviction, not to the particulars of the alien's conduct. The state conviction can only trigger removal if, by definition, the underlying crime falls within a category of removable offenses defined by federal law. Kansas' law defined "controlled substances" as any drug listed on its own schedules without reference to Section 802 of the federal law. Here, Mellouli was removable for the crime of using a sock to contain a controlled substance, not for possessing a substance controlled under Kansas law. No controlled substance as defined under section 802 figured as an element of the offense under which Mellouli was convicted. The Supreme Court interprets the federal law to limit the meaning of "controlled substance" for removal purposes to substances controlled under section 802. "Accordingly, to trigger removal under §1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug “defined in [§802]," the Court held.

Tuesday, May 26, 2015

Fifth Circuit Court Of Appeals Denies Stay Of DAPA Decision

In February, a federal district court judge in Texas granted injunctive relief in a case filed by twenty-six states challenging the legality of the executive action the Department of Homeland Security undertook late last year to grant deferred action status to the parents of Americans and lawful permanent residents ("DAPA"). Today, a 3-judge panel of the Fifth Circuit Court of Appeals on a 2-1 vote denied a request filed by the Obama Justice Department seeking to stay enforcement of the injunction until the appellate court rendered its decision in the case. "Because the government is unlikely to succeed on the merits of its appeal of the injunction, we deny the motion for stay and the request to narrow the scope of the injunction," the majority opinion concluded.

Note that the previously-approved executive action granting deferred action program for early childhood arrivals ("DACA") remains in full force and effect. See a prior post on the district court decision granting the injunctive relief requested by the states by clicking here.

Tuesday, February 17, 2015

Federal District Court Judge Enjoins Enforcement Of Executive Action Implementing DAPA And Expanding DACA

In response to a federal lawsuit filed by several states, including Indiana, a federal district court judge in Texas has issued a preliminary injunction enjoining the Department of Homeland Security from enforcing the major provisions contained in the recent executive action announced by President Barack Obama involving deferred action for some unlawfully present aliens. Today, the Secretary of Homeland Security Jeh Johnson announced the administration will halt implementation of those features of the executive action pending an appeal of the decision.

The Department had intended to begin accepting applications this week for the expansion of Deferred Action for Early Childhood Arrivals ("DACA"). Two years ago, the administration authorized certain unlawful aliens who arrived in the U.S. prior to their 16th birthday to obtain deferred action status, which permitted them to obtain work authorization for an initial two-year period, subject to renewals for subsequent two-year periods. Under the President's executive action, the so-called DACA beneficiaries would become eligible for three-year work authorization periods instead of the initial two-year period. Current DACA beneficiaries may renew their authorization but only for two years instead of the three years planned under the expansion. In addition, those eligible for the original DACA program who have not yet filed for the benefit may still come forward and file for it.

A second new deferred action category made work authorization available for parents of U.S. citizens and lawful permanent residents who have been continuously present in the country since January 1, 2010. The Department planned to begin accepting applications from so-called DAPA applicants within the next two to three months. The Department has halted those plans in light of the Texas court ruling for as long as the Court's order remains in effect.

The Department's plans for prioritizing enforcement actions is not affected by the court's ruling. Under the announced priorities for enforcement policies concerning apprehension, detention and removal, the emphasis focuses on those unlawful aliens who have been convicted of more serious crimes, suspected terrorists, gang members and persons apprehended at the border. Persons with multiple or serious misdemeanors and the most recent border crossers receive secondary priority for removal, while least priority is given to those who failed to leave under a prior removal order or returned after a prior removal order.

Wednesday, February 11, 2015

Record Number Of Americans Renounce Their Citizenship

What was once a rare event is becoming more common. Native born and naturalized U.S. citizens may voluntarily relinquish his or her citizenship. In 2014, a record number of U.S. citizens voluntarily relinquished their citizenship according to a recent report. Under 8 USC  §1481(a), there are several ways a citizen may lose his citizenship by voluntarily performing any one of several acts with the intention of relinquishing citizenship, including:

  • Becoming a naturalized citizen in or taking an oath of allegiance to a foreign state after reaching the age of 18;
  • Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S. or serving in any foreign army as a commissioned or noncommissioned officer;
  • Accepting, serving in or performing duties of any office, post or employment of a foreign government;
  • Making a formal renunciation of U.S. citizenship before a diplomatic or consular officer on a Department of State form or making a formal written renunciation whenever the U.S. is in a state of war; or
  • Committing an act of treason against, or attempting by force to overthrow, or bearing arms against the U.S.
The voluntary relinquishment of citizenship statute places the burden of demonstrating the loss of citizenship on the U.S. by a preponderance of the evidence and proof that the expatriating acts listed in the statute were done voluntarily. The Department of State is required to make a determination that a person's citizenship was voluntarily relinquished. There is a presumption against expatriation for persons who became a naturalized citizen of another country, takes a routine oath of allegiance or accepts non-policy level employment with a foreign government. That presumption doesn't apply to a person who formally renounced his or her citizenship before a consular official, takes a policy level position in a foreign government, is convicted of treason, or performs expatriating acts accompanied by conduct which is inconsistent with retention of U.S. citizenship that it compels a conclusion the person intended to relinquish his or her U.S. citizenship. 

Taxes are a primary reason behind a citizen's decision to expatriate. The Foreign Tax Compliance Act requires foreign banks to identify to U.S. taxing authorities any Americans with deposits of more than $50,000. The Act is intended to crack down on citizens who park money in overseas bank accounts to avoid taxation by the IRS. The Department of Treasury publishes a list of persons who have expatriated on a quarterly basis. Click here to see the list of Americans who expatriated during the fourth quarter of 2014. Obviously, any U.S. citizen seeking to expatriate wants to ensure the proper statutory steps are followed to escape the future reach of U.S. taxing authorities once they decide to give up their citizenship.