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  1. U.S. Citizenship Through Parents - Situations When an Individual is Born Abroad

    In certain situations, a person who was born abroad to a U.S. citizen parent and who has been living abroad for years may have acquired U.S. citizenship at birth without even knowing so. Sometimes, the clients have not even met their U.S. citizen parent/s.
    Often times, we are asked a question on whether an adult person who was born abroad to a U.S. citizen mother or father can obtain U.S. citizenship.
    The answer to this question is not simple. Persons born abroad to U.S. parent/s may have acquired U.S. citizenship at birth. This determination is based upon a variety of factors: the law in effect at the time of birth, the amount of time the American citizen parent/s have lived in the U.S. prior to the birth of the child, and, in some cases, the marital status of the biological parents.
    If you were born abroad to a U.S. citizen and if you are eligible for U.S. citizenship, you may apply for a U.S. passport or for a Certificate of Citizenship. If you apply directly for a U.S. passport, the determination on whether you qualify for a U.S. citizenship will be processed at the same time with your passport application.
    Below is the description on how you can qualify for a U.S. citizenship if you were born abroad, in wedlock, to U.S. citizen parent and alien parent. If you born out of wedlock, there are special rules that apply to you that are not covered by this article.
    In order to be considered to have acquired citizenship at birth, the following requirements have to be met: 1) a citizen parent 2) prior to child's birth 3) had been physically present in the United States or one of its outlying possessions for the required period of time that is determined based upon the date of child's birth.
    If you were born on or after November 14, 1986, the required period of physical presence of your citizen parent is 5 years prior to child's birth, at least 2 of which after the citizen parent reached the age of 14.
    So, at least 2 out of 5 required years have to be after the citizen parent is 14 years old. In other words, the required 5 years of physical presence may occur after the citizen parent reaches the age of 14.
    If you were born on or after December 24, 1952 but before November 14, 1986, the required period of physical presence of your citizen parent is 10 years, with at least 5 of these years after the citizen parent reaches the age of 14.
    If you were born before December 24, 1952, there are special retention requirements that apply to you that have to be analyzed carefully.
    Good examples of evidence to show the requisite period of physical presence are school records, transcripts, leases, employment records, social security records, affidavits from family and friends, etc.

    Since the law is complex in this area, the immigration officers who review N-600, Certificate of Citizenship Applications, may become confused and require you to present evidence of 10 years of physical presence in the U.S. by your citizen parent even though you are only required to prove 5 years of physical presence.
    In a recent case handled by our law office, U.S. citizen father has spent most of his life in Mexico. His kids were born in Mexico and have never lived in the U.S. When the application for Certificate of Citizenship was submitted, the clients were asked to present proof of citizen father's physical presence in the U.S. for 10 years. The father had spent in the U.S. only 8 years while attending high school and college before the kids were born. The clients came to us after the case was filed and before the scheduled interview with the immigration. When we met with the clients, we found out that the kids were born after 1986, and therefore the citizen father had to prove only 5 years of physical presence in the U.S. prior to the birth of the kids instead of 10 years that the immigration officer requested. When we got engaged with the case and went to the interview at the local immigration office, we made sure that the officer acknowledges that only 5 years of physical presence have to be proven. The case was successful, and the kids have obtained their Certificates of Citizenship.
    Even immigration officers are mistaken sometimes. If a situation described above happened to you, do not automatically assume that you do not qualify for U.S. citizenship. If you are not sure if you are eligible for U.S. citizenship, you can consult our law firm.
  2. Letters of the Week: Aug 22 - Aug 26

    Please email your letters to editor@ilw.com or post them directly as "Comment" below.
  3. ICE Closes Deportation Case Against Same Sex Spouse

    by , 08-22-2011 at 10:11 AM (Greg Siskind on Immigration Law and Policy)
    Some good news from Stop the Deportations - The DOMA Project reporting on a victory by my friend Lavi Soloway:

    Today, the government publicly announced it has dropped the deportation proceedings that threatened to tear apart Alex Benshimol and Douglas Gentry -- a married, gay, binational couple in California -- marking the second time in which Immigration and Customs Enforcement (ICE) has agreed to close a deportation case involving a married, same-sex couple.
    This victory for Benshimol and Gentry of Cathedral City, California -- the first same-sex deportation case to close following the June 17 prosecutorial discretion guidelines issued by ICE Director John Morton -- ends their personal nightmare and signifies a hopeful future for thousands of other same-sex binational couples facing deportation. After appearing before San Francisco Immigration Judge Marilyn Teeter for their deportation hearing on July 13, Judge Teeter instructed the government to respond within 60 days to a lengthy and detailed request for administrative closure from the couple's attorney, Lavi Soloway.
    Judge Teeter scheduled the next hearing for September 2013, postponing deportation proceedings for more than two years in the event that the government did not agree to close the case. On August 11, however, Judge Teeter received and granted the government's Motion to Administratively Close deportation proceedings against Benshimol.
    On August 18, Janet Napolitano, Secretary of Homeland Security, announced a case-by-case review of all current and future deportation cases - another milestone in the fight to repeal DOMA.
    "We are cautiously optimistic after the announcement this week by Secretary Napolitano that all 300,000 pending deportation cases will be reviewed for possible closure, including those impacting LGBT families," says Soloway. "However, we do not yet know the mechanics of that process, nor how long it will take for the government working group to carry out its mission. In the meantime, we must continue to fight for each couple and for an end to DOMA deportations across the board."
  4. AILA Report: Evidence that ICE and CBP approve of racial profiling

    by , 08-22-2011 at 07:54 AM (Matthew Kolken on Deportation And Removal)
    Last week the American Immigration Lawyers Association (AILA) released a report entitled "Immigration Enforcement Off Target -  Minor Offenses with Major Consequences"  that examines the Secure Communities program.  The report was written by Alexsa Alonzo, Associate Director of Advocacy; Kristin Macleod-Ball, Legal Intern; Greg Chen, Director of Advocacy; and Su Kim, Advocacy Associate.  
    The report reveals what I have suspected for quite some time now: racial profiling is a regular tool of local law enforcement agencies (LLEA) in the apprehension of the undocumented population, and ICE and CBP approve, if not engage in such methods.
    Here is an excerpt:

    Publicly, DHS has stated that racial profiling should play no role in immigration enforcement. Secretary Napolitano has referred to racial profiling as "illegal" and "repugnant to the law." ICE's written policy states that "[r]acial profiling is simply not something that will be tolerated." Despite these pronouncements, ICE and CBP initiated removal proceedings in cases where there was strong evidence suggesting the presence of racial profiling by LLEAs. By pursuing these kinds of cases, ICE and CBP signal tacit approval of the discriminatory and questionable practices that brought the individuals to DHS attention. DHS must send a clear and strong signal--one that goes beyond policy pronouncements--that racial profiling and other civil rights abuses by police will not be tolerated. Towards that end, DHS must stop accepting cases referred from jurisdictions under investigation by the Department of Justice for racial profiling.  DHS must also proactively review its programs and practices to identify those that might inadvertently lead to racial profiling and put in place safeguards to protect against this potential.  

    Click here to read the full report.
  5. New Deportation Review Policy is merely a Baby Step

    by , 08-22-2011 at 07:19 AM (Matthew Kolken on Deportation And Removal)
    I just read a great editorial on OrganizingUpgrade.com that questions the viability of the administration's new deportation review policy. It puts things in proper perspective:

    So the questions remain.
    Who is going to be carrying out this new case-by-case review? Is it going to be the ICE agents whose union doesn't want to use its discretionary power and calls this a  "back door amnesty?" What is their incentive to review cases fairly?
    And when the administration says that they will focus on "criminals", what do they mean? Isn't immigration policy the same set of laws that famously calls people "aggravated felons" for things that are neither aggravated nor felonies? Isn't ICE the same agency that deported thousands of suspected "terrorists" after 9/11 that were never really terrorists? And don't ICE's "worst of the worst" categories include a Baptist pastor with a 16 year old conviction from when he was homeless, a Gulf War Veteran with Post Traumatic Stress Disorder who was arrested for marijuana possession after his wife died, and a 36-year-old youth community worker who helps young people stay away from the mistakes he made as a 16 year old? If the Administration is really turning over a new leaf, does that mean ICE is turning over a new leaf?
    And then there is what the Obama Administration still refuses to do. It still refuses to create enforceable standards for how it treats immigrants in detention so that they don't die in custody. The administration still refuses to reign in the deputized powers it gives to bad sheriffs with long lists of civil rights complaints like the real-life Boss-Hog, Joe Arpaio. The Administration still refuses to call of its "creepy" Secure Communities program, which is looking more and more like the first step of a science fiction-like national database that may one day include everyone.

    I agree with the author, the administration is taking the first baby step towards a more humane and just deportation policy.  That being said, we are a long, long way from seeing any real reform.
    At least it is something to build on.
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