Immigration Law Kuenning Fall 2012
· Citizenship
o Acquisition of Nationality by Birth
§ Importance of Citizenship
· If you’re a citizen, then not subject to immigration laws:
o Have an absolute right to come into the country, that can’t be limited or taken away by the Government.
o Conditions under which you can stay in the country can’t be limited
§ Ways to become a citizen at birth:
· Born in the U.S.
o Automatic
· Born outside the U.S., but have at least one parent that is a citizen.
o This law is always changing, so law at time of birth is the one that governs.
§ Relevant Sections of INA:
· §301—National and Citizens at Birth
o (a) Every person born in the U.S., with some exceptions, is a citizen of the U.S.
o (c) If BOTH parents are citizens, the child acquires citizenship at birth, provided only that one of the parents had a residence in the U.S. at some time prior thereto.
o (g) If ONLY ONE parent is a citizen, then the citizen parent must have been physically present in the U.S. for a total of 5 years before the birth, including at least two years after age of 14.
· §309—Children Born out of Wedlock
o (a) §301 (c) and (g) will apply to a person born out of wedlock if:
§ (1) A blood relationship b/w the person and father is established by clear and convincing evidence.
§ (2) The father had the nationality of the U.S. at time of person’s birth
§ (3) The father has agreed in writing to provide financial support for the person until they are 18, and
§ (4) While the person is under 18:
· The person is legitimated under the law of the person’s residence
· The father acknowledges paternity in writing under oath
· The paternity of the person is established by adjudication of a competent court.
o (c) Not withstanding subsection (a), a person born outside of the U.S. and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if mother is a U.S. citizen and has been physically present in the U.S. for a continuous period of one year.
§ What Counts as Residency?
· Actual place of abode without regard to intention.
o Different from domicile, which is a place of abode with intent to stay there permanently.
· Any place you stay, other than just going there for a visit is going to count as a residence.
o Example: attending school establish residency, but a summer vacation won’t count.
§ Born in the U.S.
· Elk v. Wilkins
o Holding: An American Indian born in the U.S. was not considered a U.S. citizen, even though he had separated himself from his tribe.
§ Not subject to the jurisdiction thereof, but rather subject to the jurisdiction of his tribe.
· Court found him to still have an allegiance to a foreign power.
· United States v. Wong Kim Ark
o Issue: Whether a child born in the U.S. to parents of Chinese decent becomes a the time of his birth a U.S. citizen?
o Government’s Claim: He is not a citizen b/c his parent were non-naturalized Chinese residents, who were subject to the emperor of China.
o Holding: Children born in the U.S. are U.S. citizens no matter the citizenship of their parents.
§ Children born out of wedlock
· A child born out of wedlock abroad acquires citizenship at birth if his/her mother is a U.S. citizen who resided in the U.S. for one year prior to the child’s birth.
· A child can acquire citizenship through a U.S. citizen father if the father agrees to provide financial support for the child until the child’s 18th birthday and acknowledges paternity by one of three specified methods before the child attains the age of 18.
· Naturalization
§ Process of Naturalization
· A USCIS officer examines the applicant and makes a formal determination to grant or deny
o Usually just interview the applicant.
§ If application is denied, reason must be stated.
§ Applicant can then request a further hearing before an “immigration officer.”
§ If applicant is again denied after a full-fledged hearing, he can seek judicial review.
§ Derivative Citizenship (§320)
· If a child’s (under 18) parent becomes a citizen and the child is residing in the U.S. with the parent, then the child automatically becomes a citizen.
· If adopt a child from overseas, child automatically becomes a U.S. citizen.
§ Requirements of Naturalization (§316)
· At least 18 years of age
· Have resided in district you are apply for3 months
o Unless obtain derivative citizenship
· Continuous Residence
o Must have been continuously residing as a LPR for 5 years
§ Spouses of U.S. citizen living in marital union with their spouse only have a 3-year requirement.
· Marital union=actually living with your spouse.
o If separated then doesn’t count
· If marriage began before spouse’s naturalization, then 3-year period starts at the time of spouse’s naturalization.
· Physical Presence
o During the 5 years immediately prior to applying for naturalization, applicant must have been physically present in the U.S. for at least For at least half of the time (either 2.5 or 1.5 years),
§ Day you depart the U.S. counts as a day in the U.S., but day you come back does not count.
o Breaks in continuous residence:
§ Period of absence:
· If LES
rily perform one of the following acts with the intention of relinquishing U.S. nationality:
o Obtaining naturalization in a foreign state, after attaining the age of 18.
o Taking an oath or making an affirmation or other formal declaration of allegiance to a foreign state, after attaining the age of 18.
o Entering the armed forces of a foreign state, if such state is engaged in hostilities against the U.S.
o Accepting or serving in any office or employment under the government of a foreign state or a political subdivision, after attainting the age of 18 if he has or acquires the nationality of such foreign state.
o Making in the U.S. a formal written renunciation of nationality
o Committing any act of treason against, or attempting by force to overthrow, or bearing arms against the U.S.
§ Burden of proof (§349(b))
· Government has to prove the expatriating act and the intent to relinquish U.S. nationality by a preponderance of evidence.
o Need to show specific intent
· Any person who commits or performs any act of expatriation shall be presumed to have done so voluntarily, but can rebut presumption by showing, by a preponderance of the evidence, that the act or acts committed were not done voluntarily.
· Vance v. Terrazas
o Holding: After the government proves the act and intent by a preponderance of evidence, then act is presumed to be voluntary, unless the actor proves otherwise.
§ Cannot expatriate w/o specific intent to do so.
· Immigrant Visas
o System allows for lawful admission of two grounds of noncitizens:
§ Immigrants
· Come to take up permanent residence—Lawful permanent resident
· Not limited to time or purpose in the U.S.
§ Nonimmigrants
· Come for a specific purpose to be accomplished during a temporary stay
· Can remain for a limited purpose and limited time
o Type of Immigrants
§ Family-sponsored immigrants
§ Employment-based immigrants
§ Diversity immigrants
§ Humanitarian admission
o Ways to become a LPR
§ Through a family relationship
§ Through employment
§ Through a lottery system
§ Refugee status
