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Immigration Law
Wayne State University Law School
Weinberg, Jonathan T.

Citizenship
The Concept of Citizenship
Why do we have the concept of citizenship? What good does citizenship do? (Brubaker, pg. 1)
–          Although citizenship is internally inclusive, it is externally exclusive.
–          Citizenship is not simply a legal formula; it is an increasingly salient social and cultural fact.
–          Per J. Warren, citizenship is “nothing less than the right to have rights.” Perez v. Brownell
–          Basic legitimating doctrine of the modern nation-state
–          Unified group of people with something in common (and there is always a boundary)
–          Closure against noncitizens serves vital and tangible state interests; it is essential to the modern nation-state system.
 
Constitution is silent on who is/not a citizen of the United
–          Dred Scott (citizenship excluded to blacks)
–          14th Amendment: “…all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”
 
Distinction between citizens and noncitizens serves important purposes (see J. Rehnquist in Sugarman v. Dougall, pg. 11)
–          Citizens: may sue in Article III courts, right to vote, be elected to Congress, be elected to Presidency, financial assistance in many instances, and cannot be deported
–          Noncitizens: equal protection and due process rights
 
Acquisition of Citizenship
Two means of acquiring citizenship, by:
–      Birth
Ÿ Jus soli – born on United States territory
Ÿ Jus sanguinis – citizenship by blood
–      Naturalization
 
Jus Soli
–      Confers nationality based on birth within a national territory. Look to first sentence of 14th Amendment.
–      , Elk v. Wilkins (1884) – Indians were not U.S. citizens at birth … but, by 1940, all Indians born in the Unites States were citizens at birth because of statutes passed by Congress
–      , United States v. Wong Kim Ark (1898) – son of Chinese residents. Born in 1873 in San Francisco. Resided in U.S. Left in 1894 for trip to China and returned, 1895. Denied entry. Whether child born in the U.S., to Chinese parents who have permanent domicile here, becomes an American citizen at birth. “The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth with the territory, in the allegiance and under the protection of the country, including all children here born to resident aliens, with the exception of … children of foreign sovereigns, hostile occupiers within, etc” Moreover, “the power of naturalization, vested in Congress by the Constitution, is a power to confer citizenship, not a power to take it away”
 
Jus Sanguinis
–      Set forth in INA. Laws are not retroactive and the law that applies is based on birth of petitioner
 
§ 301. Nationals and citizens of United States at birth. The following shall be nationals and citizens of the United States at birth:
(c)     a person born outside of the United States and its outlying possessing of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or outlying possession, prior to the birth of such person
(d)     a person born outside of the United States and its outlying possession of parents one of whom is a citizen of the United States who has been physically present in the United States or its … possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States
(e)     a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or possessions for a continuous period of one year at any time prior to birth of such person
(g)     a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen … [more information regarding Armed Forces] (h)     a person born before noon May 24, 1934, outside the limits and jurisdictions of the United States of an alien father and a mother who is a citizen of the United States, who, prior to the birth, had resided in the United States
 
§ 308. Nationals but not citizens of the United States at birth … (2) and (4)
 
§ 309. Children born out of wedlock
(a)     The provisions of paragraphs (c), (d), (e), and (g) of 301 … shall apply as of the date of birth to a person out of wedlock if
(1)     a blood relationship between the person and father is established by clear and convincing evidence,
(2)     the father had the nationality of the United States at the time of the person’s birth,
(3)     the father (unless deceased) has agreed in writing to provide financial support for the person until … 18, and
(4)     while the person is under 18 years of age—(A) the person is legitimated under the law of the person’s residence or domicile, (B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a competent court.
(c) Notwithstanding the provision of subsection (a), a person born out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person’s birth, and if the mother had previously been physically present in the United States or one of its outlying possessions for a continuous period of one year.
“ Sample problems … pg. 46 and September 3
 
, Nguyen v. INS (2001) – child born in Ho Chi Minh City to U.S. citizen father. Came to U.S. five years later. 17 years later, pled guilty to sexual assault. INS tried to deport. Satisfied §309(a)(1), (2), and (3). However, failed (4) because no formal paternity proceeding conducted. Petitioner argued equal protection violation based on gender discrimination. J. Kennedy holds that substantial interest is two-fold: (i) assure a biological parent-child relationship exists with the parent and (ii) ensure that a relationship is not only recognized, “as a formal matter, by the law, but one that consists of the real, everyday ties that provide a connection between child and citizen parent, and, in turn, the United States.”
–      O’Connor, Souter, Ginsburg, and Breyer argue provision violative of equal protection
 
Naturalization
§ 316. Requirements of naturalization
(a)     Residence. No person, except as otherwise provided in this title, shall be naturalized unless such applicant, (1) immediately preceding the date of filing his application for naturalization has resided continuously after being lawfully admitted for permanent residence, within the United States for at least five years and during the five years immediately preceding the date of filing has been physically present therein for periods totaling at least half of that time … (2) has resided continuously within the United States from the date of the application up to the time of admission of citizenship, and (3) during all the period … has been and still is a person of good moral character, attached to the principles of the Constitution, and well disposed to the good order and happiness of the United States.
(d)  Moral character … must have good moral character for at least 5 years. 
(e)   Determination … up to DHS’ discretion (e.g. if murderer 10 years ago, discretion to not find good moral character despite five years of being good ….)
–      Residence defined in §101(a)(33): “place of general abode of a person means his principal, actual dwelling place in fact”
–      Per §316(b), absence for less than six months during statutory period does not affect continuous residence … whereas absence of more than six months but less than one year presumptively breaks continuity. Presumption can be overcome…
–      Per §319, spouses and battered women need only three years of continuous residence to file for citizenship after LPR status
–      Per §334(b)(1), applicant must be 18 years of age to file.
–      Children obtain “derivative citizenship” by operation of law and §320. §320(b) applies to adoption.
–      Per §312(a), applicant must demonstrate (1)“an understanding of the English language, including an ability to read, write, and speak words in ordinary usage…” and (2) “a knowledge and understanding of the fundamentals of the history, and of the principles and form of government, of the United States.”
–      §101(f) lists instances denying good moral character
 
“ Sample problems … pg. 63 and September 8
1.       5 months. Under § 319(a), permitted to apply for naturalization after three years. Because spouse naturalized one year after arrival, client has 8 months until application. However, §334(a) permits filing 3 months in advance.
2.       Regarding good moral character. Burglary … §101(f)(3) … § 212(a)(2)(A) … crime involving moral turpitude … but outside of five year period. Is burglary an aggravated felony? §101(f)(8) … §101(a)(43)(G)
3.       §313(a)(4)
 
Naturalization process: applicant, pursuant to §334, goes to USCIS officer who makes formal grant/deny determination. §335. If approved, oath of allegiance pursuant to §310(b). If denied, rehearing before immigration officer. §336(a). If still denied, judicial review pursuant to Administrative Procedures Act. §310(c).
 
Dual Nationality
Plural c

ien lawfully admitted for permanent residence
–      Children are determined under §203(h)
·         Must be unmarried and under 21 years old
·         Age is fixed when the parent comes off the visa queue and child must enter country within one year
·         If the alien child becomes 21 years old while waiting in the queue, petition will automatically be converted to appropriate category and shall retain original filing date (More information on page 312 of textbook)
–      Treatment of family members §203(d) … same status and consideration if accompanying or following to join
(B) Unmarried sons and daughters of an LPR who are NOT children
(a)(3) Married sons and daughters of citizens … limited to 23,400 annually
(a)(4) Brothers and sisters of citizens … limited to 65,000 annually and must be 21 years of age
–      Remember, “after acquired” spouses and children of LPRs must use (a)(2) category
·         “After-acquired” means LPR (approved) and then acquires a spouse/child … derivative status under §203(d) not allowed
·         But, if married after petition filed but before approval, spouse/child would be derivative under §203(d)
 
[3]     Employment-based preference categories … limited to 140,000 annually … §203(b)
(1)     Priority workers
(A)    Aliens with extraordinary abilities … science, art, business, education, or athletics (no job offer required)
(B)    Outstanding professors and researchers … internationally recognized, three years of teaching/researching…
(C)    Multinational executives and managers … with definitions for “managerial” and “executive capacity” in §101(a)(44)
(2)     Members of profession holding advanced degrees /aliens of exceptional ability
–      Job offer waiver if in the national interest or a physician working in a shortage/veterans area
–      Determining exceptional ability: possession of an advanced degree for a particular profession/occupation not considered sufficient by itself … must substantially benefit the United States.
–      Labor certification is required
(3)     Skilled workers, professionals and other workers … labor certification required for all
(a)(i) Skilled workers … must have at least two years of training or experience
(a)(2) Professionals … who hold bachelors degrees and are “members of a profession”
(a)(3) Other workers … limited to 10,000 annually
(4)     Certain special immigrants
–      Religious workers, former employees of the U.S. government, international organizations, and others
–      Definitions in §101(a)(27)(C)–(M)
(5)     Employment creation
–      Investors who will create at least 10 jobs with a minimum investment of $1 million.
–      Congress grants investors “conditional residence” for two years and they may adjust status under §216A
 
[4]     Diversity
–      Lottery-based system for low-admission countries. High-admission countries (e.g. Brazil, Canada, Mexico, India) not allowed to participate
–      Capped at 50,000 slots
–      Individuals must have high school education or at least two years in an occupation. Winners may bring immediate family members, but everyone counts toward 50,000 person cap.
[5]     Refugees and asylees
 
“ Sample problems … pg. 299 and September 15
1.       §203(a)(2)(A) for wife and children of an LPR. Will not fit §203(d) because “after-acquired.” Step-child under §101(b)(1)(B). OR file paperwork for naturalization and then bring wife and child over via §201(b)(2)(A)(i).
2.       Apply for citizenship. §203(a)(4).
3.       Ordinarily, §203(d) would apply for “child following to join.” Here, §203(h)(1)(A) governs the timing and since daughter did not take advantage a year after her parents’ admission, she is SOL. She could apply for §203(a)(2)(B) but the bulletin is on 01MAY98. In three years, could take advantage of §203(a)(1) with bulletin of 08OCT93.
4.       No luck.