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. 

Monday, December 22, 2014

Seventh Circuit Denies Review Of Moral Turpitude Finding In Removal Proceeding On State Conviction For Eluding Police

An immigration judge and the Board of Immigration Appeals both agreed that an unlawfully present alien's conviction under a Wisconsin statute for fleeing or eluding a police officer categorically constituted a crime of moral turpitude, thereby denying his petition for cancellation of removal. The Seventh Circuit Court of Appeals agreed with the Board of Immigration Appeals, which had issued its own free-standing opinion in the case of Pedro Cano-Oyarzabal v. Holder. The Court noted the state statute required a person convicted under the statute to "knowingly" flee or elude the police after receiving an officer's signal to stop. "Knowingly fleeing or attempting to elude an officer is an act wrong in itself and therefore a crime involving moral turpitude," the Court held.

The Immigration and Nationality Act provides that an alien convicted of a “crime involving moral turpitude” is inadmissible. 8 U.S.C. § 1182(a)(2)(A)(i)(I). A conviction for such a crime also makes one ineligible for cancellation of removal, subject to some exceptions. 8 U.S.C. § 1229b(b)(1)(C). There are exceptions if: (1) the alien was under the age of 18 at the time the crime, and the crime was committed and the alien released from prison or confinement at least five years prior to the date for application for admission to the United States; or the maximum penalty for the crime of which the alien was convicted did not exceed imprisonment for one year and the alien was not sentenced to a term in excess of six months.

In deciding whether a conviction under a criminal statute is categorically one involving moral turpitude, it must be determined whether the government in question would apply its criminal
statute to reach both turpitudinous and non-turpitudinous acts. Because the statute in question only involved turpitudinous acts, the Court was not required to look at the record of the underlying conviction to determine whether the alien's conviction involved one of moral turpitude and, accordingly, afforded deference to the agency's administrative decision.

Thursday, November 20, 2014

What Changes To Expect From President Obama's Executive Action

President Barack Obama announced sweeping executive actions he intends to take significantly altering current immigration laws and policies. The President's executive actions, while welcomed by advocates of immigration reform, are drawing sharp reaction from many members of Congress and state and local officials. Opponents of his action are already threatening legal action to overturn the proposed changes on the basis that he is exceeding his executive powers. Indiana's Gov. Mike Pence was highly critical of the President's announcement. He called it an "unacceptable end run around the democratic process." "The State of Indiana will carefully evaluate the details of the Executive Order and take any available legal actions necessary to restore the rule of law and proper balance to our constitutional system of government," Gov. Pence said.

Here is an overview of what the President's executive action will mean assuming the President is legally allowed to go forward his plans.

Deferred Action For 4.4 Million Undocumented Aliens
Previously, President Obama by executive action enacted Deferred Action for Childhood Arrivals ("DACA") which allowed undocumented aliens under the age of 31 as of June  15, 2012 who arrived in the country prior to their 16th birthday and had continuously resided in the U.S. for at least five years to apply for a deferred action benefit, which allowed eligible beneficiaries to remain in the country for a 2-year period with opportunity for extensions and to obtain authorization to work. The President's executive action will eliminate the age cap and extend DACA coverage from those arriving prior to June 15, 2007 to include those arriving on or before June 15, 2010. Previously, only persons under the age of 31 were eligible for deferred action. Now anyone who entered the U.S. prior to their 16th birthday is eligible. A person granted the DACA benefit under the new program will be afforded the benefit for a 3-year period, subject to renewal. This part of the expanded DACA benefit is expected to be up and running within 90 days.

The second and most profound change in the deferred action benefit is the expanded coverage the President intends to offer to an estimated 4.4 million undocumented aliens who are parents of U.S. citizen and lawful permanent resident children who have been continuously present in the country since January 1, 2010. If individuals in this so-called DAP category pass background checks and pay back taxes, they will be eligible for deferred action with work authorization for a period of 3-years subject to renewal just like DACA beneficiaries. This new deferred action category is expected to be up and running within 180 days.

I-601A Waiver Expansion
The I-601A conditional waiver program, which allows undocumented aliens applying for a family immigration benefit for an immediate relative to apply for the hardship waiver prior to departing the country for an immigrant visa interview at a consulate abroad, will be expanded to include spouses and children of lawful permanent residents. The President's action will also clarify and expand the definition what qualifies as an "extreme hardship."

Enforcement Priorities
Existing ICE memos regarding enforcement priorities and prosecutorial discretion are to be replaced with a priority on the following categories of immigrants: (1) suspected terrorists, convicted felons, convicted gang members and persons apprehended on the border; (2) persons convicted of multiple or serious misdemeanors and very recent border crossers (those entering after January 1, 2014; and (3) Those who, after January 1, 2014, failed to leave under a removal order or returned after removal. The revised memo will contain strong language on the use of prosecutorial discretion.

Employer-based Adjustment of Status
Individuals with an approved employment-based immigrant petition who are caught in the quota backlog for adjustment of status will be advanced to permit them to obtain the benefit of a pending adjustment. This change will affect about 410,000 petitions.

Business Immigration Changes
Changes are being proposed that are billed as improvements in business immigration such as those offered to investors or national interest waivers could be made available to entrepreneurs, inventors, researchers and founders. The length of optional practical training ("OPT") for STEM graduates is expected to be expanded.

Parole-in-place will be expanded to include families of individuals trying to enlist in the armed forces.

Visa Modernization
Efforts will be made to modernize the current visa system. One such issue that may be addressed is whether derivative family members should be counted against the visa quota and whether past unused visa numbers can be recaptured.

State and Local Law Enforcement
The Secure Communities program will be replaced with the Priority Enforcement Program ("PEP"). Detainers are expected to be replaced by requests for notification to ICE when a law enforcement agency is about to release an alien from jail.