S ince the passage of the

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2 By Rebecca Bernhardt S ince the passage of the Antiterrorism and Effective Death Penalty Act and the Illegal Immigration Reform and Responsibility Act in 1996, the number of lawful permanent residents (also known as legal residents) who are subject to deportation (now called removal ) has increased greatly. 1 This is due in part to the increased number of offenses that result in removability and in part to the retroactive application of the 1996 reforms. 2 A person convicted of an aggravated felony (which despite the way it sounds can be a relatively minor offense such as conviction for simple possession of a controlled substance or burglary and petty theft) is subject to mandatory detention and removal. During the 2003 fiscal year, the U.S. Department of Homeland Security removed 80,466 criminal aliens from the United States and 107, 990 noncriminal aliens. 3 Often the only way to prevent your lawful permanent resident client from being deported is to prove that the client is already a U.S. citizen. And for lawful residents without criminal records, naturalization is an important legal tool to guard against the risk of deportation. There are four ways to become a U.S. citizen: (1) birth in the United States and its possessions; (2) naturalization; (3) acquisition; and (4) derivation. Most legal practitioners are familiar with the first two, but not the last two. These and other special citizenship issues may come up in your cases and could save your client from being one of thousands of individuals who are deported each year. Rebecca Bernhardt Staff Attorney ACLU Drug Law Reform Project 101 Cooper St., 2d Floor Santa Cruz, CA rbernhardt@aclu.org Citizenship by Acquisition You have a client family, including a mother who is a lawful permanent resident and four U.S. citizen children. The mother is arrested for shoplifting. After advising her about getting a criminal defense attorney, you ask her about her family s immigration history. She tells you that her mother, who never married, was born in Pecos, Texas, and lived in Mexico from the age of 6. Your client is a U.S. citizen, and she may avoid deportation if you can prove that she is a U.S. citizen. 1 Antiterrorism and Effective Death Penalty Act, Pub. L. No , 101 Stat (1996); Illegal Immigration Reform and Responsibility Act, Pub. L. No , 110 Stat (1996). 2 See generally Bruce Robert Marley, Comment, Exiling the New Felons: The Consequences of the Retroactive Application of Aggravated Felony Convictions to Lawful Permanent Residents, 33 SAN DIEGO LAW REVIEW 855 (1998). 3 See U.S. DEPARTMENT OF HOMELAND SECURITY, FISCAL YEAR 2004 IMMIGRATION MONTHLY STATISTICAL REPORT: APRIL 2004 (May 28, 2004), available at Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

3 Citizenship by acquisition is the legal term for when a foreign-born person receives U.S. citizenship automatically, either at birth or when the conditions precedent occur. 4 Distinguishing acquisition from naturalization is important. Acquired U.S. citizens do not apply for citizenship. If a person meets the legal criteria to be an acquired U.S. citizen, that person is a U.S. citizen automatically. The person applies to the federal government only for documentation of the U.S. citizenship status already attained. All acquisition cases have one factor in common at least one of the person s parents had to be a U.S. citizen at the time of the person s birth. Key questions for identifying acquired U.S. citizens are: Were one or both of your parents U.S. citizens at the time of your birth? Were any of your grandparents U.S. citizens? 5 Were your parents married at the time of your birth? Was your U.S. citizen parent physically present in the United States before your birth? 6 Under the present law, applicable to individuals born abroad after November 14, 1986, a child born in wedlock to one U.S. citizen parent and one foreign national parent is automatically a U.S. citizen if her U.S. citizen parent was physically present in the United States for five years before her birth, two years of which were after the parent turned 14 years old. 7 This rule is a rough attempt by Congress to create a test of whether a parent will be able to pass on American culture and values to a child born abroad. Actual acquisition of U.S. culture and values is irrelevant to whether a person acquires U.S. citizenship. If the child was born out of wedlock after November 14, 1986, and the U.S. citizen parent is the mother, the child automatically becomes a U.S. citizen if the mother resided continuously in the United States for one year any year before the child s birth. 8 This is the most lenient test under the current acquisition rules. If the child was born out of wedlock and the U.S. citizen parent is the father, the physical-presence rule for legitimate births applies, and the child must fulfill several special requirements, including showing by clear and convincing evidence a blood relationship with the father; showing that the father promised in writing to support the child until the child turned 18; and showing that the child was legitimated or that the father signed a sworn acknowledgment of paternity. 9 These rules are much easier to fulfill if the child you are representing is still under 18: if your client is a minor you can prepare a simple sworn statement for the father to sign promising financial support of the child until age 18. If the client is already 18, it is too late for the advocate to prepare a statement, and such a statement is unlikely to exist. Even if the father actually did support the child until age 18, the statute is strictly construed to require a written statement of support. 4 A useful resource on citizenship by acquisition is Robert Mautino, Acquisition of Citizenship, in 90-4 IMMIGRATION BRIEFINGS 1 (1990). 5 Individuals have established U.S. citizenship by tracing their family back two or more generations and showing that one of their parents acquired U.S. citizenship without knowing it. 6 Before 1952 this requirement was residence, and not physical presence. See DANIEL LEVY & MARY KENNEY, U.S. CITIZENSHIP AND NATURALIZATION HANDBOOK app (2004). A parent who maintained a residence in the United States could pass citizenship on, even if the parent was not actually physically in the United States. 7 8 U.S.C (2003). 8 Id. 1409(c). 9 Id. 1409(a). If a father has petitioned for a child through family-based immigration and filled out an affidavit of support for the child, this often fulfills the requirement that the father promise in writing to support the child until the child turns 18. Clearinghouse REVIEW Journal of Poverty Law and Policy September October

4 For individuals born before November 14, 1986, earlier versions of the nationality laws apply. 10 Depending on the period, for one U.S. citizen parent to pass on citizenship to a foreign-born child the law may require up to ten years of physical presence in the United States before the birth of the child, five years of which were after the parent turned One of the most challenging and creative parts of an acquired U.S. citizenship case can be finding proof of physical presence for the U.S. citizen parent. Depending on the applicable period and the life history of the U.S. citizen parent, this can be very simple or very challenging. The simplest and best forms of proof are the following: Detailed social security earnings history. 12 A detailed earnings history costs money but is better evidence of physical presence than the free printouts, showing only earnings for each year, from the local social security office. Especially for farmworker parents, the detailed earnings history can be very helpful even if recorded earnings are sparse. The detailed statement may show that the U.S. citizen parent worked in eighteen different states over a twenty-year period strong evidence of physical presence even if the earnings are small in each of those years. The Social Security Administration started keeping records in the 1930s. Railroad retirement records. These records parallel the social security system for railroad workers. School records. These can be found through school districts and, for older records, through school census records at the county clerk s office. Marriage, divorce, birth, and baptismal records. Records for younger siblings can show physical presence for both older siblings and parents. Rent receipts or deed records, even utility bills. Military records. Because preferential acquisition rules apply to the children of U.S. military in some cases, these records can be doubly useful. For older and more complicated cases, additional sources of evidence include the following: Census records. Generally the census is taken in April each census year. You can order records from the Census Bureau (Form BC-600). Your request is more likely to be successful if you have the parent s address for the relevant year. The cost is about $50 for each census year requested. The 1930 census and earlier are public record and can be accessed through (with a subscription) or for free at Family History Centers (genealogy research centers run by the Mormon Church). Criminal records. Imprisonment in the United States is very good proof of physical presence. Immigration records. For many families, making a Freedom of Information Act request for A-files for every relative you can think of may be very helpful. An A-file, or alien file, is kept for just about every noncitizen who interacts with immigration authorities, whether by filing an application for an immigration benefit or by being arrested and deported or removed. The Department of Homeland Security has records, including birth certificates and other important documents, going back decades. Even deportation records can show physical presence of a U.S. citizen parent. Selective service registration records For a useful chart to help you find out which laws apply to your client, see LEVY & KENNEY, supra note 6. Roughly five major law changes have occurred in the rules for acquisition of citizenship. The periods break down as follows: (1) before May 24, 1934; (2) between May 23, 1934, and January 13, 1941; (3) between January 13, 1941, and December 24, 1952; (4) between December 24, 1952, and November 13, 1986; and (5) after November 14, Id. 11 See Nationality Act of (g), 54 Stat (in effect from January 13, 1941, until December 24, 1952). 12 Form SSA-7050-F4. 13 These records can be ordered by sending a fax to , Selective Service, National Headquarters, Records Division, Arlington, Virginia. 312 Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

5 Any other official government record showing that the family was in a particular place at a particular time. Newspaper articles and photos. Sometimes the only way to prove your case is by witness testimony either through affidavit or live testimony. This may seem like the best evidence, but the U.S. Citizenship and Immigration Services can be quite skeptical of live witness testimony especially when your client is in removal proceedings. Affidavits should be as detailed as possible. The more detail a statement has, the more credible the statement is likely to appear. Documentary evidence that supports the affiant s story can also bolster credibility. Be prepared for an immigration judge to question your elderly witnesses very intensely to determine if the testimony is credible. Derivative Citizenship and the 2000 Child Citizenship Act Your client was a lawful resident until he got deported for possession of cocaine. He immediately crossed back into the United States illegally and was arrested by Border Patrol. His federal public defender calls you after learning that the client became a lawful permanent resident when he was 14; growing up, he lived with his father, who became a naturalized U.S. citizen when your client was 12; and, although his parents never divorced and his mother never had any immigration status in the United States, she passed away when your client was 17. Your client is a derivative U.S. citizen. For a person to derive U.S. citizenship, three circumstances have to happen before the person turns 18: (1) she must be residing lawfully in the United States; (2) she must be in the custody of the parent or parents through whom she is deriving status; and (3) one or both parents must have become naturalized U.S. citizens. 14 (The last requirement was expanded under the Child Citizenship Act to include birth-citizen parents.) 15 To derive citizenship from only one parent, the other parent must either be deceased or the parents must be legally separated and the naturalizing parent must have custody both physical and legal of the child. 16 Joint custody is good enough as long the U.S. citizen parent has physical custody before the child turns Under the 2000 Child Citizenship Act, many more young people who were born abroad will be automatic U.S. citizens. This Act permits children of a U.S. citizen parent who is a citizen by any means (birth, naturalization, acquisition, derivation) to derive citizenship if, while the child is under 18, the child (1) becomes a legal permanent resident and (2) is in the physical and legal custody of the U.S. citizen parent. 18 Conflicting Birth Certificates a Problem for Birth Citizens You have completed I-485 applications for lawful permanent residence for several siblings who are applying for the status through their U.S. citizen father. The applications are denied, and the father is placed in proceedings: the father has a Mexican birth record in addition to his U.S. birth record. Among many Mexican and Mexican- American families in the United States, a little discussed legal problem waits in the wings. Many Mexican-national parents registered the births of their U.S.-born children with the Mexican birth registry as if the birth had occurred in Mexico. They do this because many families return to Mexico and believe that 14 LEVY & KENNEY, supra note 6, app Id.; Child Citizenship Act of 2000, 8 U.S.C LEVY & KENNEY, supra note 6, app Id. at U.S.C Clearinghouse REVIEW Journal of Poverty Law and Policy September October

6 Mexican authorities will deprive their children of services and benefits because they were born in the United States. 19 When you come across a client who has two birth certificates, carefully study the U.S. birth record. Was it filed contemporaneously with the birth (within the first year) or is it a delayed birth certificate? Did a midwife assist in the birth? If so, find out if the midwife was ever charged with or convicted of fraudulently filing U.S. birth records. 20 Are there other contemporaneous U.S. records of the birth, such as baptismal records or medical records? If the U.S. birth record was contemporaneous and it was a hospital birth or a birth assisted by a registered midwife with no history of committing fraud, your job of proving that the birth occurred in the United States is much easier. If, however, the U.S. birth record is delayed or otherwise irregular, proving the birth record s validity may be quite challenging. 21 Look carefully at the Mexican birth record. Was it filed contemporaneously? Can the family tell you a logical story about when they got it and why? Does the record lack essential information (e.g., the mother s name) or otherwise have the appearance of being inaccurate? Records certified as valid by the Mexican consulate may still have been fraudulently filed. Generally the first birth record in time is considered more reliable. Like acquisition cases, other legal documents can help you build your case. Birth and baptismal records for siblings showing that a family was in the United States for several years in a row can help prove that the U.S. birth record is the correct one. If the parents or the midwife are still living, credible testimony explaining why there are two records can be very valuable. Battles over the validity of a U.S. birth record take place in immigration proceedings, before the U.S. Passport Service, or with the Bureau of Vital Statistics office for the state that issued the U.S. birth certificate. 22 These cases can be very difficult to win. If you believe the family s story that the birth occurred in the United States, fight hard in these cases. No one should lose his birthright over a mistake his parents made. Naturalization Although naturalization is increasingly important given the expansive grounds for removal, it is also becoming more difficult. Many have heard the latest horror story of the long-time legal permanent resident in Washington State whose application for naturalization was denied because of one incident of illegal fishing years ago. 23 Statistics demonstrate the trend toward denying naturalization applications. For example, denials of naturalization applications as of April 2004 were up 25 percent from April Approximately 11.4 million lawful permanent residents live in the United States. Of these, 7.8 million over Under Mexican law, like U.S. law, a person born abroad to two Mexican citizen parents generally becomes a Mexican citizen at birth. The proper procedure for Mexican citizens to ensure that their U.S.-born children get the rights and privileges of Mexican citizens, is to have their children s U.S. birth records translated and certified by a Mexican consular office and then filed with the birth registry in Mexico. This will ensure that the correct location of the birth is recorded and that the child will receive the rights and benefits of both Mexican and U.S. citizenship. 20 See United States v. Lopez, 704 F.2d 1382 (5th Cir. 1983). 21 See De Brown v. Department of Justice, 18 F.3d 774 (9th Cir. 1994). 22 See id. at 775; United States v. Jean-Baptiste, 166 F.3d 102, 104 (2d Cir. 1999). For an example of a state procedure, see 25 TEX. ADMIN. CODE , which provides for a hearing to review the Bureau of Vital Statistics refusal to issue a birth record due to a conflicting birth record. 23 Chris McGann, One Mistake Robs Man of Citizenship: Moral Character Standard Challenged in Class Action Suit, SEATTLE POST-INTELLIGENCE, May 10, 2004, at A1. 24 See DEPARTMENT OF HOMELAND SECURITY, supra note 3, at Clearinghouse REVIEW Journal of Poverty Law and Policy September October 2004

7 percent are eligible to naturalize. 25 While legal aid providers should advocate naturalization, we should do so cautiously, giving detailed information about the risks of filing for naturalization. If a person with a criminal conviction previously undetected by the Department of Homeland Security files a naturalization application, that person may be placed in removal proceedings and ultimately deported. In answering a general inquiry from a client about the client s eligibility to naturalize, you should emphasize the importance of working with an immigration attorney or an accredited representative to ensure that naturalization is a prudent option for that client. 26 Proof of Citizenship Once you determine that your client is a U.S. citizen by acquisition or derivation, the client will need evidence of citizenship. Two forms of evidence are available: certificates of citizenship issued by Citizenship and Immigration Services and U.S. passports issued by the U.S. Department of State. If your client has already been deported or is living abroad, the only proof available is a U.S. passport, applied for through the nearest U.S. consulate. A few strategic concerns influence the kind of proof to pursue for your client. Certificates of citizenship never expire. However, for a client with no current immigration status in the United States, applying for a certificate of citizenship could land your client in removal proceedings if the application is denied. Passports last ten years and then must be renewed. The State Department, at least to date, does not seem to be referring rejected passport applications to the U.S. Immigration and Customs Enforcement for proceedings. For birth citizens, U.S. passports and birth certificates are the only forms of proof of citizenship in regular use. Naturalized U.S. citizens receive naturalization certificates as proof of citizenship and are also eligible for U.S. passports. Habeas Among the potentially unfamiliar problems that you quickly face if you dive into difficult citizenship cases is how to keep your client from being deported while you prove that the client is a U.S. citizen. Depending on the circumstance, this may involve schmoozing your client s deportation officer, or it may require filing a habeas petition in federal court. Either way, note some important details about Legal Services Corporation guidelines on representing detained immigrants. First, immigration detention is not criminal detention, and so the rules against representing prisoners do not apply. 27 Second, filing a civil habeas petition to keep someone in the United States is permitted (habeas challenging the validity of a criminal conviction is verboten). 28 If you are confronted with a case like this, consult with an advocate who has experience with civil habeas and playing chicken with the immigration authorities. Author s Acknowledgments I would like to thank Erica Schommer, staff attorney, Texas Rio Grande Legal Aid, and Lee Terán, clinical professor of law, St. Mary s University School of Law, for their contributions to this article. 25 See OFFICE OF IMMIGRATION STATISTICS, U.S. DEPARTMENT OF HOMELAND SECURITY, ESTIMATES OF THE LEGAL PERMANENT RESIDENT POPULATION AND POPULATION ELIGIBLE TO NATURALIZE IN 2002 (2004). 26 The basic requirements for naturalization are found in 8 U.S.C. 1423, For information on naturalization, see LEVY & KENNEY, supra note 6; IMMIGRANT LEGAL RESOURCE CENTER, NATURALIZATION: A GUIDE FOR LEGAL PRACTITIONERS AND OTHER COMMUNITY ADVOCATES (2002). 27 See 45 C.F.R (a) (2003), which defines incarcerated to mean the involuntary physical restraint of a person who has been arrested for or convicted of a crime. See also Carlson v. Landon, 342 U.S. 524, 537 (1952) ( Deportation is not a criminal proceeding and has never been held to be punishment ). 28 See 45 C.F.R (restriction on actions collaterally attacking criminal convictions). Clearinghouse REVIEW Journal of Poverty Law and Policy September October