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Gender Differences in Derivative Citizenship Requirements

by Loretta McRae Filippi (’19)

Imagine two babies born outside of the United States. One is born to a U.S. citizen mother and a father from another country, the other to a U.S. citizen father and a mother from another country. Neither couple is married. The child born to the U.S. citizen mother will be able to derive U.S. citizenship from her mother with nothing more than her mother’s name on the birth certificate, and proof of the mother’s citizenship and that the mother lived for the required amount of time in the United States. The baby born to the U.S. citizen father will not be able to acquire citizenship through her father even if she can prove her father is a citizen and lived the required amount of time in the United States, unless the father legally legitimates her before the age of 18, provides proof of paternity, agrees to support him financially and the child is in the custody of the father. All a mother needs to do to give citizenship to her child is to be the mother, this is not the case for a father. This is an example of the largest remaining gender difference in our immigration laws. As a student of immigration law, I was surprised to learn of this large gender asymmetry. This post will briefly review historical changes to our derivative citizenship laws, examine case law as it currently exists, and put forward ideas of why it should change.

Derivative citizenship is citizenship that is passed on from parent to child through blood. Derivative citizen laws have changed throughout the years and, perhaps surprisingly have always included some degree of difference between ability to pass on citizenship and what is required to do so depending on whether, in the case of one U.S. citizen parent, the parent is a woman or a man. Additionally, there have been differing treatments based on whether the baby is born in or out of wedlock. Today, the main differences remaining in our derivative citizenship laws is in the additional requirements placed on a father to give citizenship to his child born outside of a marriage that are not required of a mother. A study of these differences in our derivative citizenship laws is an excellent illustration of how ideas of gender shape our laws , while highlighting the danger of too much deference given to congress that is common in immigration law. The gender imbalance in our derivative citizenship laws run contrary to the values we strive for in other areas of our society that have been reflected in other areas of law.

Originally, women had much less ability to retain and pass on citizenship than men. Citizenship from birth abroad could only be given by a father, women could not extend citizenship to their children. Similarly, after the Expatriation Act was passed in 1907, women would lose citizenship upon marriage to a foreigner. Clearly at the time, there was consensus that the true holders of citizenship were men and that permitting citizenship to transfer through women was problematic. It is likely that some of this justification rested on the man as the head of the household and his perceived ability to direct the values and culture of a household. With women’s suffrage in 1920, some of this began to change, as representatives realized they needed to court the women’s vote. After 1934, women could convey citizenship to their children, and by the 1940’s women would no longer lose their citizenship through marriage to a non-citizen. When this changed, the residency requirements for being able to grant derivative citizenship become stricter and for the first time, a residency requirement is placed on the recipient child to retain their citizenship.

Although the law changes, the ideas behind them are slow to change as we see in Roger vs. Bellei, a 1950 case about the constitutionality of losing citizenship after not meeting the required residency before age 18. The court in Bellei, envisions a greater perceived danger when the father is the alien parent, “These problems are particularly acute when it is the father who is the child’s alien parent and the father chooses to have his family reside in the country of his own nationality. The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child’s own primary allegiance is to the country of his birth and of his father’s allegiance is either misplaced or arbitrary.”

The ability of women to convey citizenship to their children was not the end of gender differences in the acquisition of citizenship laws. Until very recently, there have been differing residency requirements between men and women as well as the still remaining difference in the out of wedlock rules. Legal challenges to these laws based on gender have been largely unsuccessful until a recently.

Two major supreme court cases that unsuccessfully challenged the out of wedlock rules are Miller v. Albright and Nguyen v. Immigration and Naturalization Service. In Miller, a woman seeks citizenship through her father, a U.S. citizen. Miller argues that her fifth amendment right for due process was violated because she was not given citizenship at birth while those with citizen mothers are. The court decides that because men and women are not “similarly situated” in regard to their relationship with their children, the statutory differences to not violate the fifth amendment. The court argues that a woman will know that she has a child because she gives birth while a father may not be present at the birth and may not even know that there is a child and additionally, that proof of parentage is much easier to show for woman than for a man.

In Nguyen, a young man who was born in Vietnam to a Vietnamese mother and a U.S. citizen father and who lived after the age of six with his father in the United States is denied citizenship because his father failed to meet the requirements of the statute before Nguyen turned 18. Nguyen asserts a violation of the fifth amendment because of differing treatment based on whether the one parent with American citizenship is the mother or the father. As in Miller, the court finds no violation because the different requirements are based on the different relationships between mothers and fathers at birth.

Both Nguyen and Miller are unpersuaded by the fifth amendment argument. However, in Sessions v. Morales-Santana, a case decided in June 2017, the court does find a violation of equal protection. In Sessions, it is not the out of wedlock rules being challenged but longer residency in the United States required to convey citizenship by a father than by a mother. The court says that there is no reason that the residency requirements should be different between men and women and any argument otherwise is based on “overbroad generalizations” and “now untenable, assumptions.”  Unfortunately for the plaintiff, the court decides that the longer residency requirement will stand for both genders until Congress addresses the issue.

The decision in Sessions is a step in the right direction as it recognizes that a gender difference in our immigration laws can violate the Constitution, thus limiting Congress’ power to some extent. However, I think that the court should have gone farther. I believe that the court could have found for the plaintiff and still been acting within its authority. The way the court decided still gives too much deference to congress on the matter of derivative citizenship and not enough focus on the constitutional rights of people. This is a major problem in our county’s immigration jurisprudence.

As it now stands, it is only the extra steps required of a child born to an unmarried citizen father that show gender bias in the derivative citizenship laws. It is possible that the court’s holding in Sessions is indicative of a willingness of the Supreme Court to revisit the issue and to find differently. Although there may be justification for some different requirements for men and women, the law as it currently exists seems to me clearly discriminatory for reasons articulated by Sessions. Why should there be a cut off at age 18 for a man’s children while a woman’s children get citizenship at birth? Why should a man have to agree to financially support their child when a woman does not? Why is proof of paternity not enough but a formal legitimization is required? Just giving birth does not mean a woman will be a good mother or have a future relationship with the child. Similarly having a child out of wedlock does not mean that a father will not have a strong future relationship with a child. Why is there such different treatment based merely on a marriage between a couple? If paternity is presumed by marriage shouldn’t paternity also be presumed by a father’s simple confirmation?

The idea that a man is not expected to have a relationship with his children is sexist. Furthermore, the burdens placed upon a father in this case are not insignificant and likely involve extra financial costs. The 18-year window is especially problematic as a person may not be aware of these requirements especially if they have acted and been acknowledged as the child’s father, and they may never need show their child’s citizenship until it is too late as was the case in Miller and Nguyen. On the other hand, the ideas behind the laws are harmful to women. The unmarried mother should not be expected to take on the full burden of a child by herself. Society should encourage both men and women to take on equal parenting responsibilities. This is good for women, for men and for children. Women who have help in childcare are more likely to succeed professionally and children who have involved fathers have been shown to have better outcomes. The laws as they exist are discriminatory of both men and women.

Additionally, the focus on marriage should be eliminated. The reality is that more and more couples are choosing to forgo marriage so that this special treatment for married individuals seems outdated. Marriage is not necessarily an indicator of relationship stability, longevity or even fidelity. Whether or not someone wants to be married to a person does not show whether they will be an involved parent to a child they have with that person.

Our laws should strive to treat men and women the same when possible. For derivative citizenship, this would mean changing the requirements placed on the father of a child born outside of marriage. First, legal legitimization, and agreeing to financial support is too heavy a burden. If congress feels that paternity needs to be absolutely established, as maternity is when a woman gives birth, a DNA test should be sufficient. A DNA test is relatively quick and inexpensive, and it is accurate. Secondly, the 18-year time limit should be eliminated.

It would be possible for congress or the court to eliminate the gender imbalance in the law by requiring the same burdens of mothers. This is what the court did in Sessions. However, I would advocate against that, because I believe a child who has a claim to citizenship should not be denied that citizenship because a parent is unable or unwilling to support them or they happen to be over the age of 18.

The laws need to change to reflect a less gendered view of citizenry and parenthood. Hopefully the gender differences in the acquisition of citizenship laws will change accordingly.

DACA’s Recent Rescission

On Tuesday, September 5 the Attorney General announced that the DACA program would come to an end on March 5, 2018.  According to later reports this would mean that those currently with DACA and whose status is set to expire before March 5 are getting a reprieve of sorts, that is, if they file their renewal requests before October 5.  These people, estimated at approximately 200,000 will be eligible for a two year extension on their DACA along with their employment authorization of equal duration.  The Mexican government announced that it would cover the costs for renewing the applications ($495) for their nationals who could not afford these steep filing fees.

Numerous lawsuits have been filed challenging the revocation or rescission of the DACA program but none offer consolation for the tremendous set back represented by this most recent action by the Trump Administration.  One of the concerns addressed by a law suit filed today by the California Attorney General is that the information in the DACA applicants could be used to track down the beneficiaries and their family members. The lawsuit, at least in part, hopes to end that possibility using an estoppel and due process legal theory.

While the challenge has always been with the Congress for they are the place where legislation originates and only they can present the legislation to a President for signature.  It is not clear how Congress will deal with this challenge, but there are several obvious alternatives. First, they could legislatively enact a program which mirrors the DACA program which the President just extinguished.  Second they could do what the Congress was set to do a number of years ago, which was to create a pathway to lawful permanent resident status for those who would otherwise have qualified for DACA.

At this time while it seems unlikely that Congress will respond by providing a legislative fix, the political climate is as favorable as it has been for some time.  Recent polling indicates that up to 65% of Americans would like to see Congress enact a reprieve for DACA recipients.  Legislation has been introduced in both Houses of Congress but nothing seems to be moving.  Perhaps advocates can appeal to the baser instincts of the Congress and remind them that the last DACA program generated more than a $1 billion for the US Treasury. The revenue windfall from anything that Congress creates.

It seems that a worthwhile strategy for advocates would be to marshall support from religious leaders who may be one of the few remaining constituencies which have influence in both the Executive and Legislative branches.

Permanent Residency for UK Baby – Where’s the Compassion for the Other Children?


Today’s New York Times includes an article by Emily Cochrane titled Lawmakers Push to Give Ill Baby US Residency. The story is worthy of commentary for a number of reasons most notably that it references two Republican lawmakers (and the Trump Administration) as eager to grant permanent residency for the purpose of granting extensive experimental medical coverage to a non-citizen. The story of this child’s plight is gut wrenching and calls for a compassionate response. I do not and am not competent to address the medical issues but I can speak to some of the immigration themes.

Republicans and immigration restrictionists for years have complained that non-citizens have been flocking to this country illegally in search of free medical care. While these stories are way overblown and unfounded, I find it odd that these members of Congress would through private legislation try to grant permanent residency to a UK citizen with a rare genetic disorder with the purpose of extending to him highly expensive experimental medical care. Lawful permanent residency does not normally confer access to free medical care since an intending immigrant with a medical condition would be barred from admission because of their likelihood of becoming a public charge. In addition a person admitted to permanent residency is ineligible to receive a whole array of public benefits for 40 quarters (10 years) following their admission. And a person who accepts one of these benefits could be deported unless they can show that condition which required the benefits occurred after their admission to permanent residency. These restrictions in US immigration have long been at the core of US immigration law. The inscription which appears on our Statue of Liberty of welcoming the poor and rejected is not reflected in our immigration statutes.

The mechanism used to grant permanent residency to this child is most extraordinary and is commonly known as a “private bill” effectively bypassing the normal visa requirements. The “normal” visa procedure would require the child’s parent’s to have any one of the following: 1) close family ties with a US citizen or permanent resident; 2) a skill for which there is a US employer willing to sponsor either of the parent’s; or 3) either of the parents winning a visa under the annual “diversity” immigrant visa lottery administered by the US for nationals from certain countries (of which the UK is one). Even if the child’s parents could fit into any of these categories they would still have to wait their turn because of the immigrant visa quota that controls how many persons can come to the US each year. More importantly the parents would also have to overcome the extensive “grounds of inadmissibility,” the most ominous being the likelihood that they would need extensive medical care in the US and therefore be unable to show that they were not likely to become a public charge. The inadmissibility grounds bar the admission of people such as the family mentioned in this story.

Of course there are other legal avenues short of permanent residency, but even those would require the parents to show that they had medical care lined up through private sources or that it would be paid through some insurance plan. Short of that, if this case were handled like most, the Department of Homeland Security (DHS) official at the border or the US consular officer in London would not allow this child and his parents to come here. That is what happens to most people in desperate need even if they have supporters in this country.

This brings us back to the original story and begs the question of why an Administration which is perhaps one of the most most restrictionist in a century, would want to bypass all normal procedures and grant permanent residency to this family? The generosity which these lawmakers and the Trump Administration would extend to this family should also go out to others from countries where people have no access to medical care.

[For those interested in private bills I highly recommend a thorough exploration of the material by a colleague, Ana Marie Gallagher titled AILA’s Focus on Private Bills and Pardons (American Immigration Lawyer’s Association Foundation 2008)]

US – Cuba Relations and Immigration Policy

On June 16 of this year President Trump announced that he would role back many of the openings made by President Obama in US-Cuba relations in July 2015. You might recall that in the last two years of President Obama’s presidency the Department of State announced ongoing meetings with the Castro government. These talks led to the establishment of full diplomatic recognition in July 2015. In addition to establishing diplomatic relations the Obama Administration did all that could be done by the Executive Branch to normalize travel and commercial relations with that country. It was not within President’s powers to many of the economic and travel sanctions previously imposed by Congress. While it remains unclear what the Trump Administration has done, it appears that the relative open travel by average US citizens sanctioned by the Obama Administration will be rolled back.

This commentary addresses how some of the changes will impact on matters related to immigration between the US and Cuba.

Travel to Cuba from the US

The President does not have full control of the economic embargo on Cuba. However he does implement many elements of the embargo. What this means is that he has the authority to issue travel and commercial licenses by US citizens visiting Cuba or engaged in business activity. Changes instituted by President Obama, meant that a larger group of Americans would not need to obtain separate permits each time they visited. Previously academics, journalists and traveling under an organization license could visit as long as their expenditures were kept within limits set by the Treasury Department. In recent memory Cuba has not imposed travel restrictions on foreigners visiting the island nation. In fact all that was required of visitors was that they purchase their visa on arrival. The visa and not the person’s passport would be stamped avoiding any evidence of the person’s Cuba visit. Prior to Obama’s lifting of some of the restrictions, Americans with family ties in Cuba could travel to Cuba only twice a year. Academics, journalists and others with a Treasury Department license could travel for their work. Travel outside of these restrictions risked possible criminal prosecution for violation of the embargo.

Strictly speaking, the embargo is not really a ban on travel to Cuba. Instead it places restrictions on how travelers spend money, how businesses trade or transfer technology with Cuban entities and individuals. For this reason an American national who visits Cuba at the invitation of an entity in Cuba and does not spend his or her US dollars in Cuba would not be in violation of the embargo.

Perhaps the main violators of earlier iterations of the embargo were Cuban-Americans who returned to Cuba for a third, fourth or fifth trip (the embargo permitted only two such “family” trips per year). These travelers could often be found traveling from locations in Mexico or other countries into Cuba after completing their two legal visits. The Cuban government was complicit in these violations because they did not place an entry or exit stamp into the travelers passport. Their complicity was rewarded for Cuba received a healthy injection of foreign (hard) currency into its economy. The changes instituted by the Obama Administration in 2015 broadened the group of Americans who didn’t need to obtain a specific travel license to visit and that is one of the major impacts of the Trump Administration rollback of the restrictions. One report noted that in 2016 more than 285,000 US tourists visited the island from representing a 74% increase from the previous year. No doubt that number will drop significantly this coming year as well as the group visits.

Travel to the US from Cuba

If the Trump Administration applies the immigration laws as they were written by Congress, there could be a number of significant immigration impacts.

Expedited Removal
– The 1996 immigration law amendments created major changes to US immigration law, of which one of the most far-reaching was a procedure called “expedited removal.” Expedited removal gives the immigration inspector at the border the authority to turn back an arriving person with only the approval of his or her supervisor. The basis for invoking expedited removal need only be where the immigration officer believes that the arriving person (Cuban) obtained their US visa through a fraud or misrepresentation or has not travel documents. The decision is wholly discretionary and no immigration judge gets involved in the case unless the person can establish a “credible fear of persecution” on account of race, religion, nationality, political opinion, or membership in a particular social group. As enacted in 1996, the expedited removal statute specifically exempted Cuban nationals until the US entered into full diplomatic recognition. To the extent that the Trump rollback does not rescind diplomatic recognition, expedited removal should be applied to Cubans arriving.

Expedited removal ties in closely with another statute. In 1966 Congress enacted the Cuban Adjustment Act which provides that any Cuban who is admitted or is allowed to physically enter parole may apply for permanent residency within one year of their physical entry without regard to having the normal family or employment relationship with a US citizen or entity as is required of all other immigrants. Normal immigration law restricts immigration to the US to a strict quota where the applicant must show that they have a close family relationship with a US citizen or permanent resident. Alternatively the person must be able to show that they have skills that are in short supply and if they are hired by a US employer that they will not displace US workers. The general immigration statute imposes numerical limits on the number of persons who can be admitted under these family and employment relationship categories, thereby creating waiting lists for most persons who want to immigrate to the US. The Cuban Adjustment Act bypasses most of these obstacles, but the application of expedited removal on Cubans could diminish the opportunities to take advantage of it.

Greater Difficulties for Cubans in Qualifying for Visas – Many Cubans labor under the misunderstanding that it is the Cuban and not the US government which imposes the greatest restriction on their travel to the US. As noted previously the first thing that Cubans coming on shorter visits will encounter will be the presumption that they are actually intending to immigrate and that will place a heavy burden on them. Most nonimmigrants are denied visa on this basis and it doesn’t require an explanation from the consular officer reviewing the application. Even if they can overcome this presumption they will need to fit into one of the narrow nonimmigrant visa categories, i.e. tourism, education, etc. These will require them to show that they have funds to support themselves for the entire time that they will be in the US and that they will not be working. If a family member in the US is supporting their request, that could serve as a disqualifier since it may indicate that they are really an intending immigrant.

If they would like to immigrate then they will have to fit the narrow categories under the statute which limit these visas to persons who designated close familial relations with US citizens or permanent residents. Except for those who are children or spouses of a US citizen or whose adult children are US citizens there is a long waiting list to immigrate – meaning that the immigrant may have to wait years to come to the US. These delays are not because of processing times but because the US maintains a rigid quota system.

So the Cuban who would like to try to come to the US whether for a short or long term visit, they are going to learn very quickly that immigration to the US is going to be more difficult than ever, for visas will be difficult to obtain not because of any impediments created by the Castro government but as a result of the normal immigration rules.

The Travel Ban – a Glass Half Empty or Half Full?

Depending on your perspective you may see the recent Supreme Court “decision” in Trump v. IRAP as a victory, a loss or neither. I put the term “decision” in quotation marks because while technically a decision, what the Court actually did was issue a preliminary ruling on how the case will be handled pending its final resolution in the Fall or Spring. I view the decision as a preliminary skirmish and neither a victory nor a loss.

How you view the Court’s decision will likely depend on whether you are the type of person who sees the glass as half empty or half full. I prefer to focus on what the Court was dealing with in the immediate task at hand, which was to decide what should happen to those persons who were applying for visas or admission from the relevant countries while the case was pending – after all they were being asked by the Administration to completely set aside the implementation of the lower court’s “full stop” on the “Travel Ban.” Effectively, their preliminary decision was to limit the application of the travel ban to the smallest group of people who would likely be impacted during the period from now to when the case is finally decided the case. People with the most attenuated ties to the U.S., while meriting protection might not have been able to get here in any event during the time that this case is being considered by the Court. I am not arguing in favor of the Court’s reasoning but articulating why it might have chosen to balance the equities in this manner. Those who saw the glass as “half empty” considered the decision as a repudiation of the lower court placed a full stop on the ban. Let us be clear that the normal refugee process (from application to admission), particularly from conflicted areas is probably 18 months. This is much longer than the life of this Executive Order. Those who view the glass as half full can take solace in the Court’s acknowledgment of the interests of travelers coming to join family or other relations in the U.S. Those who view the glass as half empty will focus on future refugee applicants who are unable to establish relationships in the US under the articulated standard.

Who is covered by the Decision?

Clearly the per curiam order permits the suspension of admission of persons from the listed countries “who lack any bona fide relationship with a person or entity in the United States.” However what is or is not a bona fide relationship is not clear and may be subject to arbitrariness by lower level officials. The Court makes it clear that it contemplates that people like the parties in the litigation which resulted in the injunction entered by the lower courts would not be subject to the ban. Those were family, students and researchers. It is notable that the term “bona fide” as used by the Court is far broader than the normally narrow relationships found in the immigration laws – these are limited to parent-child, spousal, siblings and employer-employee relations. However here they could also encompass students coming to study or persons attending conferences, etc. The relationships could easily include refugees coming under the sponsorship of refugee settlement agencies. But does it include refugees without any familial relationships in the U.S.? There is a strong argument that these relationships satisfy the requirements since many of these organizations were found to have standing to bring the cases in the first place and the Court specifically mention them in the per curiam order. Indeed most refugees are admitted under this form of sponsorship. However it is most perplexing that the Court did not provide a mechanism to clarify the meaning of “bona fide” relationships. Lower level officials will likely feel free to apply whatever definition suits their fancy. Surely this will invite the parties to seek clarification and how that will be accomplished could create even more drama in the coming months.

What does the Decision say about how the Court will rule on the merits?

The decision issued on Monday while unsigned included a dissent by Justices Thomas, Alito and Gorsuch. They argued that the stay should be lifted in its entirety and the Travel Ban should be implemented. Some believe that the granting of Certiorari and narrowing of the stay speaks volumes about where the Court is headed when they decide the case on the merits. However another way to look at this decision, and this is where I am, is that the separate dissent only tells us what I assumed all along, which is that these three Justices were never likely supporters of any restraint on this exercise of Executive power. The dissenters are of the view that “there is a significant possibility that the judgment below will be reversed.” Does that then mean that the remaining justices view the case differently, that “there is a significant possibility” that the respondents with a bona fide relationship with persons or entities will prevail?

Conclusion

In the end there are many issues presented in this case involving statutory interpretation and Constitutional interpretation, none of which were articulated in the decision rendered this past Monday and we do not know how the Court will decide this case. A clear victory at this stage for the Trump Administration would have been the Court’s doing what the dissenters argued – setting aside the injunction. A clear victory for the challengers would have been if the entire order had been upheld. But in the end, the each side got something. The Executive Order remains unenforceable for nationals from the designated countries who have bona fide relationships with persons or entities in this country and that includes refugees bearing those same relationships including sponsorship.

Finally, and more curious, the Court made requested that the parties address the matter of whether the challenge to Section 2(c) of the Executive Order was rendered moot on June 14, as that was the expiration date of the review period set forth in the second Order. The Executive Order was temporary and set a 90 day review period in which to develop guidelines and procedures. Another curiosity of this case was the Administration’s decision not to seek expedited review or to even move forward on how these restrictions would be applied or whether it would invoke a permanent ban based on such review. Surely at least for some of the Justices this may send a message about how serious this so-called national security threat really is.

The More Absurd Moments in the Life of a US Immigration Lawyer

This is reposted by permission from Braden Cancilla, Immigration Attorney of Pasadena. It presents in stark reality the absurdities in US immigration law. It was originally posted in a closed Facebook group.

Telling a Mexican LPR, who married his wife in Mexico, that there’s about a two year wait before she can immigrate to the US. Telling the same LPR that he can lose his LPR status, and the ability to immigrate his wife, if he stays outside of the US for too long to be with his wife.

Telling a 70-year-old adult US citizen that it’ll take about 24 years to immigrate her 75-year-old brother to the US from the Philippines.

Advising the adult son of an LPR parent that if he gets married to the mother of his three children he’ll lose his ability to immigrate through his LPR parent because he got married.

Advising an undocumented immigrant, who has been in the US for more than 6 months, that from an immigration standpoint, it may better for him to stay in the US rather than to leave the US.

Telling a US citizen that, due to the number of petitions involved, USCIS charges less for an LPR to immigrate his wife and three minor children to the US than it does for the US citizen to immigrate his wife and three minor children to the US.

Telling a US citizen that “K” nonimmigrant visas were created so that she could bring her non-citizen husband to the US faster than if she were to immigrate her husband through an immigrant visa but then telling the US citizen that, in practice, it takes about as long to get a “K” visa for her husband as it does to get him an immigrant visa.

Telling an LPR that you can’t tell him for sure if he’s removable for having been convicted of a “crime of moral turpitude” because the term “crime of moral turpitude” is not defined by statute or regulation and there have been no cases analyzing the specific code section under which the LPR was convicted. It’s also hard to believe that the INA sections that contain the term, “crime of moral turpitude” have not been found to be “void for vagueness” under the US constitution.

Breaking the news to an indigent, undocumented, illiterate, Guatemalan woman, who only speaks Mam, that she may have to represent herself in removal proceedings because she is not entitled to a free attorney.

Giving the news to an undocumented immigrant, who has three US citizen children and who is married to a US citizen, that he’s permanently barred from immigrating through his US citizen family members because he was unlawfully present in the US for more than one year, left the US to be with his dying mother, and then returned to the US without authorization to be with his wife and kids.

Trying to explain to a man who fears being murdered by a criminal gang in El Salvador that US immigration judges, who have deported thousands of Salvadoran gang members to El Salvador, are reluctant to give asylum to Salvadoran victims of gang persecution because to do so would be to implicitly admit that the immigration judges have exacerbated the gang problem in El Salvador that caused the man to flee.

Having what seems like millions of non-attorneys illegally practicing immigration law and having the various State Bars do almost nothing to assist their dues paying immigration attorneys to defend against this onslaught and the devaluation of their licenses. Don’t even get me started regarding the gross harm that is done to non-citizens who receive inaccurate legal advice from non-attorneys.

Explaining to a man, who was tortured abroad in a military torture chamber, that due to US foreign policy concerns, it will be hard for him to get asylum in the US on the basis of the torture because the US government funds the foreign military and to grant asylum relief would require the US to implicitly admit its involvement in the torture.

Having a non-citizen flee a foreign country’s “Kangaroo” courts and unfair legal system only to be ordered deported from the US without first speaking to an attorney or seeing a judge.

The Cost of Deportation?

This past weekend, CNN posted a report that the cost of deporting each person who is illegally the US was about $10,854 in fiscal 2016. (CNN April 13, 2017) The story highlights how misleading most news reporting is on immigration topics. While the underlying message is a good one — that it is very expensive to deport, the story understates the true costs.

First lets take the cost to the government. The story mistakenly assumes that the only costs for immigration removals (that is how the statute defines “deportations”) are from the ICE and CBP budgets. In fact a large number of these cases must be heard by an immigration judge in an immigration proceeding. At a minimum the government is represented by a lawyer and an immigration judge must preside over the proceeding. At the hearing there may be an interpreter, a court clerk additional court staff. If the non-citizen subject of the hearing decides to appeal the decision that case goes before another set of judges called the immigration appeals, in which case the lawyer for the government may have to write a brief and a panel of administrative appellate judges along with their staff review the record and decide the case after hearing from the applicant’s lawyer. While the government does not provide the applicant with a lawyer the government is certainly represented as each case is called at each stage in this process. In many cases the applicant may appeal the decision to a federal appellate court — there the case is heard by a panel of three judges and reviewed by the staff of the court to make sure that the law has been followed.

The CNN piece did not disclose the cost to the government in either being represented at the deportation hearing or the later administrative and court appeals. Nor did it discuss the costs to the federal judiciary for reviewing the cases. Indeed the immigration courts are overwhelmed and their dockets have skyrocketed such that new cases brought in today only move at a “fast” pace if the person has very little going for them — meaning no family ties in the U.S., no credible persecution claims or no possible immigration benefits that could be sought.

According to the Executive Office for Immigration Review there are 250 immigration judges in 58 immigration courts. Those judges received approximately 300,000 new cases and decided 273,000. What that number doesn’t tell you is how long and how much time it takes to decide each case for the immigration court backlog is said to exceed 500,000 cases. (If you are interested in immigration court’s caseload and report you can download it here.) Currently there are 16 administrative appeals judges on the Board of Immigration Appeals. None of these numbers include the support staff for each of these offices nor the private interpreters that have to be hired to enable the judges to take non-English testimony. The workload on these judges has an impact and in fiscal year 2014 approximately 5% of the Board’s 25,000 cases were remands from the federal courts, meaning that there were serious errors that required some type of additional attention by the Board of Immigration Appeals.

A Brewing Migration Problem?

The March 26 edition of the New York Times has an article, titled Renegotiate NAFTA?: Mexico Says Get On with It. What is important about the story is that the uproar generated by the ascendance of Donald Trump to the presidency and his call for renegotiating NAFTA, the economic uncertainty he has caused is having real and serious negative consequences.

The Trump Administration could be creating or may have already created a migration problem. Migration problems with anyone’s neighbor are always serious for the receiving country. If you are not sure about what this looks like take a look at any part of the world that is the receiving country. Quick examples that come to mind are Argentina at different times in the recent past, Jordan and Turkey in the wake of the Syrian civil war — and well the US and Mexico. When people decide to move, the countries which experience the greatest impact are those which are the closest.

The story reports that last year foreign investment in Mexico fell by 6% and is expected to drop by 21% this year. This means slower economic growth, rising interest rates and more political upheaval in Mexico. These are all prescriptions for more people in Mexico making the move to places in the US. On the US side of the border, the Trump Administrations pronouncements on immigration have created problems for agriculture by making it more difficult to find workers to harvest the crops. We are already witnessing a dramatic decline in foreign students choosing the US as their destination. Chinese and Indian students alone contribute more than $16 billion to the US economy. Some say that foreign students add about $33 billion to the US economy.

Notwithstanding the call to build a wall, hiring more ICE officers along the border and other dramatic pronouncements about immigration — none of these are more powerful migration factors than the economic and political forces which actually cause people to move. This is a fact that we have seen throughout history and which our political leaders are not going to change.

Mr. Trump’s gyrations about relations with Mexico and his threats to upend NAFTA may actually create a more serious migration problem something which was really not a problem to begin with. The one thing that the US should not want is a less stable Mexico. But everything that we do seems to be moving us in that direction.

How the Trump Administration has mis-characterized the 2015 Visa Waiver Amendments

The Trump Administration has said on a number of occasions that its Muslim Ban (I know that they don’t call it that but that is how it started out and whether it is in fact such a ban will be decided by the courts.) was justified by Congress’ enactment in 2015 of similar restrictions.[H.R. 158, The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015] I believe that the comparison and attempted justification of the current ban by using the 2015 enactment is not justified because the earlier action was a change in visa issuing procedures, not a ban.

It is worth noting at the outset that members of Congress are always in the position of having to to show their constituents that they are doing something even if it is ineffective. It’s like the adage that if you only have a hammer in your toolbox every problem will look like it’s a nail. Congress often does things that may be contrary to law and it is the job of the Executive Branch to try to moderate the application of the law to make it consistent with the Constitution. Failing that the judicial branch exists to keep them all honest. The second applies to the legislation enacted in 2015 that the Trump Administration claims to give them license to impose a ban based on religion and nationality. The 2015 legislation was a response to a concern that persons who had traveled through certain countries could have been radicalized and should be subjected to additional screening. It focused on these people rightly or wrongly because there were millions of people from a selected countries who were subjected to lesser screening. The countries that fall within this group are most of the European nations, Japan, Singapore and South Korea, Taiwan, Australia and New Zealand. The only country from Latin America under the program is Chile. There are many requirements for getting on this list and they include extensive data sharing and there it must be an strong record of its nationals who come to the U.S. and maintain their proper nonimmmigrant status. to them. This program was first established in 1986 and later made permanent is known as the “Visa Waiver Program” (VWP).

What Congress did in the 2015 amendments was to separate from the Visa Waiver Program, people who had traveled through the suspect countries or who were dual nationals with one of them. It effectively stated that these people had to be screened just like the 10.8 million other tourists and visitors for business who applied for visas in 2016. (The number of nonimmigrant admissions under the VWP last year was approximately 21 million, and the number admitted under regularly issued tourist visas was approximately 55 million.) [See Immigration Statistics, Nonimmigrant Admissions to the U.S.] The 2015 amendments did not, as was done in the Executive Order, ban the admission of any group of people. It enabled the Department of State which issues visas and the Department of Homeland Security which inspects arriving non-citizens to subject these people to an additional level scrutiny comparable to that imposed on most nonimmigrants. So the procedure did not expand our already broad exclusion laws nor did it create either a nationality or religious ban.

Let’s be clear – even people coming from a visa waiver country are not assured of admission. In fact, they can be easily turned back on arrival and put on the next plane with barely an explanation. Unlike other nonimmigrants admitted to the US they have effectively waived their rights except to being considered for asylum protection. All other nonimmigrants, that is persons from anywhere else in the world who are issued a visa are subject to multiple checks, first when they apply for their visa overseas and then when they arrive.

One last point of fact which in my view highlights how the Trump Administration has mischaracterized and overblown the importance of the amendments is that throughout the period of conflicts in the region and with heightened concerns about terrorism, the Department of Homeland Security have granted and extended Temporary Protected Status (TPS), to nationals of Somalia, Sudan, Syria and South Sudan living in the U.S. (See List of Temporary Protected Status grants.) A grant of TPS provides these people with protections from deportation or being placed in removal proceedings and gives them formal work authorization in incremental one year periods. This is hardly a sign that the U.S. has ever considered these people as a group to be a security threat requiring their categorical denial of admission.

Can the Attorney General Faithfully Enforce the Immigration Laws?

It seems that these days nearly every time you open the newspaper there is a story on the front page that raises an immigration issue. Here’s one that may be less obvious to most, except perhaps the immigration lawyer.

Recently the Washington Post broke a story that raised serious questions as to whether the current Attorney General, made a false statement or committed perjury when he testified at his confirmation hearings. At the hearings the Senator denied having had any encounters with Russian officials. It was later learned through news sources, that he had at least two encounters with Russian officials, one in his Senate office and the other while attending the Republican National Convention in July, 2016. The story set off a firestorm over whether the new Attorney General should recuse himself from any Department of Justice (DOJ) investigation of alleged Russian interference in the 2016 Presidential election including possible contacts with the Trump campaign.

It may not be readily apparent that this controversy has any relevance to immigration and nationality law. I believe that it does for a variety of reasons. The Attorney General enforces the immigration laws through the immigration courts. He is also responsible for representing the government when it opposes someone who is seeking citizenship through naturalization. Similarly the Attorney General is often the one representing the United States whenever it is seeking the revocation of a person’s citizenship through a procedure called denaturalization.

Before getting to the immigration story it’s important to look at the facts that are known in this case. Let’s take a look at an excerpt from the questions and answers at the Attorney General’s confirmation hearing. This excerpt from the transcript was taken from a CSPAN recording of the testimony. As is routine in these situations, before giving his testimony the Senator was administered an oath in which he swore that he would provide “the whole truth and nothing but the truth” under penalty of perjury.

    Sen. Franken: CNN has just published a story, and I am telling you this, uh about a news story that’s just been published I’m not expecting you to know whether or not it’s true or not. CNN just published a story alleging that the intelligence community provided documents to the President-elect last week that included information that “Russian operatives claimed to have compromising personal and financial information about Mr. Trump[”] these documents also allegedly stated “there was a continuing exchange of information during the campaign between Trump surrogates and intermediaries for the Russian government.[”] Now again I am telling you this as its coming out so ah you know, but if its true it’s obviously extremely serious and if there is any evidence that anyone affiliated with the Trump campaign communicated with the Russian government in the course of this campaign what will you do?
    Senator Sessions: Senator Franken I am not aware of ah any of those activities. I have been called a surrogate at a time or two in that campaign and I did, not have communication with the Russians, um and I am not able to comment on it.

(emphasis added)

While Senator Franken’s question was about what Sessions would do as Attorney General if he learned of contacts between “anyone affiliated with the Trump campaign” and the Russian government, his response went beyond the question and included several assertions on his part. First that he was “unaware of … any of those activities.” In the second he stated that he had been called a Trump campaign surrogate and that he did not “have communication with the Russians.” Finally he stated that as a result of his other statements he was not able to comment on the question. According to news stories the Senator had at least two encounters with either the Russian government or their intermediaries one of which was at the Republican National Convention in July,2016. As a result of this previously sworn testimony a number of commentators have called on Sessions to resign. Others urged him to recuse or withdraw himself from involvement in any DOJ investigation of the matter of Russian interference in the 2016 election campaign. By the end of last week Sessions had agreed to withdraw from any involvement in the investigation. The calls for Sessions’ resignation and recusal were predicated on the notion that because he had given false statements which amounted to perjury he could not be an impartial overseer of the investigation.

While I believe that determining whether Sessions committed perjury is an important line of inquiry, we also need to look at other issues. Nearly every immigration lawyers has uuuto determine the consequences of a person’s false or misleading statements. In immigration law a serious legal problem arises where an applicant provides false or misleading statements irrespective of whether the false statement was material. In addition when looking at whether a false statement relates to something which is material one needs to look at the impact of the response to the to the questioning that was taking place. If for example Sessions had acknowledged that he had contacts with the Russians would Franken have asked other questions? It could be argued that if Sessions had testified consistent with the news recently published has been learned more recently the Committee would have learned that at least one of those encounters may or may not have been with Sessions in his on the Senate Armed Service’s Committee. Perhaps the Committee might have wanted to explore what transpired during those encounter. Possibly a different response would have allowed the committee to explore the issue of whether the Senator had either knowingly or unwittingly been involved in meddling by the Russians in the electoral process.

The issue raised here was addressed in Kungys v. U.S., a Supreme Court cases involving the denaturalization of an alleged former World War II prison guard accused of executing Lithuania Jewish citizens during the war. Kungys had given false testimony and submitted false documents relating to his date and place of birth in both his naturalization and original visa applications which had enable him to first come to the U.S. The Court in an opinion authored by Justice Scalia held that even though the false statements made by the applicant might not have been material to the underlying application, if it had a natural tendency to influence or cut off a line of inquiry relevant to the naturalization it could be treated as material. In Kungys the Court found that in this case his false statements about his date and place of birth would not meet the requirements for an illegal procurement for denaturalization. But the Court held that the false statements even though not amounting to perjury did reflect on his lack of good moral character. Indeed there is no materiality requirement in determining whether false testimony result in a finding that an applicant lacked good moral character. In Kungys’case a lack of good m establish good moral character at the time of his application could lead to his denaturalization because it is something which is required of all citizenship applicants.

Any prosecutor would explain that it is not easy to get a perjury conviction. As a specific intent crime, it requires proof that the person who was under oath, intentionally provided a false statement about a fact which was material. As a result even where a false statement has been made obtaining a conviction can be very challenging for any prosecutor.

There are a multiple provisions in the immigration laws which impose serious sanctions against those who have provided false statements, misrepresented facts or engaged in other forms of deceptions to obtain an immigration benefit, even where they don’t amount to perjury. A false statement such as the one given by Senator Sessions during his confirmation if perpetrated by someone seeking any immigration benefit would result in a serious sanction – probably the denial of entry, deportation or denial of citizenship.

Insofar as we are looking at the statements made by the current Attorney General we can say that a minimum his statements likely had an impact on the line of questioning and could have led to further important and relevant questioning. Even if the statements did not amount to perjury, were those statements dishonest and befitting what we would expect of our Attorney General. After all the Attorney General is charged with enforcing and interpreting immigration laws intended to combat the very behavior in which he has allegedly engaged.

If you are interested in the statutory references that bear on this discussion they are listed below.

8 U.S.C. 1101(f)(6) – good moral character as defined by under the Immigration and Nationality Act.
8 U.S.C. 1427(a) – the good moral character requirement for naturalization applicants
8 U.S.C. 1451(a) – illegal procurement of naturalization by either by concealment of a material fact or a misrepresentation.

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