TOP 10 POSTS ON THE INSIGHTFUL IMMIGRATION BLOG IN 2013

By Cyrus D. Mehta

Thank you for reading and supporting The Insightful Immigration Blog.  Listed below are the top 10 most viewed blogs in 2013. We will continue to provide insightful commentary on contemporary immigration issues in 2014, and wish all of our supporters and well wishers a very happy New Year! While these are the 10 most viewed blogs, each blog is a carefully crafted gem, and we invite you to read all of them.

1.  AN IMMIGRATION ATTORNEY'S RESPONSE TO STATEMENT OF USCIS UNION PRESIDENT OPPOSING SENATE IMMIGRATION BILL, S. 744      

2.  WORKABLE OR UNWORKABLE? THE H-1B AND L-1 VISA PROVISIONS IN BSEOIMA, S. 744      

3.  WHEN IS A TWEET AN ATTORNEY ADVERTISEMENT?  

4.  USCIS ISSUES PROVISIONAL WAIVER FINAL RULE: BEGINNING IN MARCH, SOME WAIVERS OF THE 3- OR 10-YEAR BARS MAY BE SOUGHT BEFORE DEPARTING THE UNITED STATES     

5. SOME PRELIMINARY OBSERVATIONS REGARDING THE PROPOSED "BORDER SECURITY, ECONOMIC OPPORTUNITY, AND IMMIGRATION MODERNIZATION ACT"            

6. DELAYS FOR OVERSEAS SPOUSES OF US CITIZENS SEEKING GREEN CARDS  

7. THE STATUS OF INTERNET PROXY MARRIAGES UNDER IMMIGRATION LAW                    

8.  HOW CALIFORNIA'S AB 1159 WILL HURT IMMIGRATION LAWYERS AND THEIR CLIENTS: A NEW YORK IMMIGRATION LAWYER'S PERSPECTIVE  

9.  212(k) WAIVER VICTORY TEACHES THAT IT'S NOT WORTH MANIPULATING THE IMMIGRATION SYSTEM TO SETTLE PERSONAL DISPUTES     

10.  AMERICA’S ROLE IN SYRIA AFTER THE CHEMICAL WEAPONS ATTACK AND IMMIGRATION REFORM

ONE STEP FORWARD, TWO STEPS BACKWARDS: IMMIGRATION BENEFITS FOR SAME SEX AND DOMESTIC PARTNERS IN INDIA

By Cyrus D. Mehta and Ramya Mahesh

The question of immigration benefits to same sex couples is still a far cry in India. India not only disallows same sex marriages, it also currently criminalizes relationships between same sex partners, terming them as unnatural. Section 377^[i] of the Indian Penal Code (“IPC”), an archaic law, was introduced in 1861 during the British rule in India, which criminalized "carnal intercourse against the order of nature with any man, woman or animal" with a maximum sentence of life imprisonment.

The struggle to strike down Section 377 of the IPC as unconstitutional has been a long one, spearheaded by several activists from Non-Governmental Organizations (“NGOs”) fighting for the rights of the Lesbian Gay Bisexual Transgender (LGBT) community.  On July 2, 2009, a historic judgment^[ii] decriminalizing homosexuality was passed by the Delhi High Court in favor of Naz Foundation, an NGO working in the fields of HIV/AIDS intervention and prevention and for the rights of the LGBT community. An appeal was filed challenging this decision in the Supreme Court of India. On December 11, 2013, the Supreme Court reversed the decision of the Delhi High Court,^[iii] thereby criminalizing homosexual intercourse between consenting adults. The apex court shifted the onus onto parliament to decide whether to repeal the provision, arguing that the courts could not make such decisions under the existing laws. The apex court further observed that there was “no constitutional infirmity” in the 377 law. This judgment has sparked widespread condemnation throughout India and internationally, and has been criticized as regressive. Naz Foundation plans to file a review petition challenging the decision of the Supreme Court soon.

As Indian law does not recognize same sex marriages, there are no provisions in Indian law according immigration benefits to same sex partners. It is therefore not possible to qualify for an entry visa to accompany one’s partner who may be entering India on a long term employment visa.  At the most, the partner can come to India on tourist visa (for a maximum period of 180 days).

However, there have been isolated incidents and trends worth reporting. In November 2013, a senior IFS officer was demoted from her post in the Ministry of External Affairs (“MEA”) passport and visa division for refusing a visa to the same sex spouse of an American diplomat.^[iv] She refused the visa on the ground that same sex marriages are not legal in India and the diplomat’s spouse could not therefore be granted a diplomatic visa and recognized as a “spouse” in India. A senior official in the MEA’s American division suggested that although there is no rule in India to give visa to a gay couple, the diplomat's partner could be given visa as a family member as it had been done in the past. In light of India’s opposition to the arrest of its Deputy Consul General in New York, one politician from the Bhartiya Janata Party has shrilly suggested that the same sex partners of American diplomats be prosecuted under Section 377 as a retaliatory measure. It is hoped that this inappropriate statement be viewed as an isolated one and not consistent with mainstream opinion.

As for domestic and unmarried partners, Indian law did not, till recently recognize the relationships between domestic, live-in partners. On June 17, 2013, the Madras High Court held^[v] that for a valid marriage, all customary rights need not be followed and subsequently solemnized. As long as the couple is not disqualified by law from marrying each other, and a third party’s rights are not affected, the couple can be declared to be spouses by the court. This declaration would be on the basis of whether they have had a sexual relationship. The Court held that if a woman aged 18 and above, and a man aged 21 and above, have a sexual relationship, they will be treated as husband and wife, especially if the woman becomes pregnant. Even if the woman does not become pregnant, if there is “strong documentary evidence to show existence of such relationship,” they will still be termed “husband” and “wife.” However, this ruling is only applicable to the state of Tamil Nadu and cannot be enforced elsewhere in India.

In a recent judgment of November 26, 2013, the Supreme Court of India had dealt with the issue of live-in relationships but it was within the purview of the Domestic Violence Act 2005 (the “DV Act, 2005”). The Supreme Court has held^[vi] that a “live-in relationship” would not amount to a “relationship in the nature of marriage” falling within the definition of “domestic relationship” under Section 2(f) of the DV Act, 2005 if the lady in such a relationship knew that the male partner was already married. All live-in relationships are not relationships in the nature of marriage, but they can still come within the ambit of the DV Act, 2005.. The judgment was delivered by a Division Bench of Justices KS Radhakrishnan and Pinaki Chandra Ghose in an appeal filed by one Indra Sarma (Appellant) against the decision of the Karnataka High Court. This ruling will only apply to domestic partners of opposite sexes and will not be applicable to same sex partners in view of the recent decision of the Supreme Court in the Suresh Kumar Koushal case^[vii]

It has to be kept in mind that as these issues are very recent and path-breaking as far as Indian laws are concerned, there has been no recognition, thus far, in Indian law, of same sex partners or domestic / unmarried partners with respect to  Indian immigration. It is quite obvious that if India does not change its outlook to according benefits to same sex spouses or partners, it will be disadvantageous to the country as fewer people may wish to travel to India for tourism and business. More important, failure to recognize same-sex relationships, especially in light of a regressive penal provision in 377, is not in keeping with the principles and traditions of the world’s largest democracy country that has otherwise accommodated diverse people and beliefs through its history.

Update: In a very positive development, the Indian government filed a review petition in The Supreme Court on December 20, 2013 challenging the earlier judgment upholding Section 377 stating, "Section 377 IPC, insofar as it criminalizes consensual sexual acts in private, falls foul of the principles of equality and liberty enshrined in our Constitution." 

(Guest writer Ramya Mahesh is an Associate at Little & Co., one of the oldest and most highly reputed law firms in Mumbai, India)

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^[i] Section 377: Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or with imprisonment of either description for term which may extend to ten years, and shall also be liable to fine.

Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offense described in this section.

^[ii]Naz Foundation vs. Government of NCT of Delhi 2010CriLJ94.

^[iii] Suresh Kumar Koushal  vs. Naz Foundation decided by the Supreme Court of India on December 11, 2013.

^[iv]http://www.indianexpress.com/news/ifs-officer-denies-visa-to-spouse-of-gay-american-diplomat-moved-out/1201023/

^[v]Aysha vs. Ozir Hassan 2013 (5)MLJ 31.

^[vi]Indra Sarma vs VKV Sarma, Supreme Court of India, Criminal Appeal no. 2009 of 2013 decided on November 26, 2013.

^[vii] Supra , see footnote 3.

PLEASE HELP ME: I HAVE JUST FOUND OUT THAT MY I-94 HAS EXPIRED!

By Cora-Ann V. Pestaina

Mark Thomas (not the actual name of any client, of course) is suddenly living a nightmare. He has just discovered that he has remained in the U.S. well after the expiration date of the Form I-94 issued to him the last time he entered the U.S. in H-1B status. His employer has informed him that he might be out of status and he wants to terminate his employment because he thinks Mark is no longer eligible to work in the U.S. Mark’s first desperate instinct is to get on the next international flight to anywhere and then re-enter the U.S. to receive a new I-94. However, his attorney advises him that this is too risky and warns Mark - leave and he could be barred from re-entering the U.S. for years! Mark Thomas feels hopelessly stuck.

Every foreign national who has visited the U.S. whether for business or pleasure, is familiar with the all-important Form I-94. The I-94 is the Department of Homeland Security’s (DHS) Arrival/Departure record. Customs and Border Protection (CBP) issues the I-94 to document a foreign national’s admission into the U.S.  whether the individual is admitted as a nonimmigrant or is the process of adjusting status in the U.S.   U.S. Citizenship and Immigration Services (USCIS) also issue the I-94 to foreign nationals who are extending their nonimmigrant status or changing from one nonimmigrant status to another in the U.S. This I-94 appears at the bottom of USCIS’ Form I-797A, Approval Notice indicating USCIS’ approval of the petition or application to extend or change the foreign national’s nonimmigrant status in the U.S.

Previously, whenever a nonimmigrant arrived in the U.S. by air or sea, he or she usually filled out a white arrival/departure record – the I‑94 (or green I-94W for foreign nationals entering on a visa waiver) - and presented it to the port’s CBP officer. The officer would then tear off the bottom portion of the form and stamp it to indicate the alien’s nonimmigrant status (i.e. B-2, L-1A, H-1B, etc.) and the expiration date of the alien’s authorized period of stay.  The I-94 was then stapled to a page of the alien’s passport, and upon departure, the alien had to turn in the I-94 at the port of departure as a record of timely departure. 

CBP has now automated the I-94 process for all foreign nationals applying for admission at U.S. ports of entry. Air and sea travelers no longer need to complete the paper I-94 (or I-94W). CBP will still issue a paper I-94 at land border ports of entry and also to certain classes of aliens such as refugees and at other times CBP deems the paper I-94 to be appropriate. When issuing the electronic I-94, the CBP officer will stamp the foreign national’s passport with an admission stamp that indicates the class of admission; the date of admission and the admitted until date. Now, foreign nationals who need to present their I-94s as proof of their lawful status to employers, schools/universities or government agencies can access their CBP arrival/departure record information online at www.cbp.gov/I94. 

Remaining in the U.S. beyond the period of authorized stay as granted on the I-94 may cause the foreign national to be out of status and unlawfully present in the U.S. Staying beyond the period authorized is a violation of U.S. immigration laws and may result in the foreign national being barred from reentering the U.S. in the future. More specifically, remaining in the U.S. for more than 180 days beyond the I-94 expiration date could cause the foreign national to be barred from reentering the U.S. for a period of three years and staying for more than one year beyond the I-94 expiration date could cause the foreign national to be barred from reentering the U.S. for a period of 10 years.

Unfortunately, many foreign nationals remain unaware of the importance of the I-94. Oftentimes, foreign nationals are confused as to which document governs their stay in the U.S. There could be one expiration date on the nonimmigrant visa stamped in their passport; another expiration date on the I-94 issued on Form I-797 by USCIS and yet another expiration date on the I-94 issued by CBP upon their last entry into the U.S. In some cases, foreign nationals and their employers can neglect to note the I-94’s expiration date and the foreign national could inadvertently remain in the U.S. well beyond the authorized period of stay possibly in violation of U.S. immigration laws. This is exactly what happened to Mark Thomas.

Mark is a national of Bermuda, who resides in Chicago, Illinois. Mark last entered the U.S. through Newark Airport in New Jersey on August 15, 2012 and presented his H-1B visa stamp valid until September 30, 2012 and his Form I-797, H-1B Approval Notice issued by USCIS indicating that his H-1B status in the U.S. had last been extended from January 1, 2012 until March 10, 2014. The Form I-797 bore an I-94 card on the bottom indicating an expiration date of March 10, 2014. At the airport, the CBP officer issued Mark an I-94 valid only until February 15, 2013, the same expiration date as Mark’s passport. 

Under 8 CFR 214.1(a)(3)(i), any foreign national who applies for admission to the U.S. must present a valid passport and valid nonimmigrant visa unless either or both documents have been waived. The foreign national’s passport must be valid for a minimum of six months from the expiration date of the contemplated period of stay.  While the regulation requires the presentation of a passport with such validity dates, there is nothing mandating the DHS to grant the I-94 till the expiration date of the passport. Some countries have agreements with the U.S. whereby their passports are recognized as valid for return to the country concerned for a period of six months beyond the expiration date specified in the passport. The effect of these agreements is to extend the period of validity of the passport for six months beyond the expiration date appearing on the face of the document. The issue is discussed at 9 FAM 41.104 N2. The list of countries that extend passport validity for an additional six months after expiration is at 9 FAM 41.104 Exhibit I.

Mark presented CBP with a passport valid for at least six months but not valid for the full H-1B validity period indicated on the Form I-797A, Approval Notice. As a national of Bermuda, Mark’s passport ought to have been considered valid until August 15, 2013, six months beyond the expiration date listed in his passport. CBP issued Mark an I-94 with the same expiration date as the expiration date listed in his passport because, although the regulations do not mandate this, DHS appears to interpret “contemplated period of stay” in the regulation to correspond to the duration of the admission on the I-94. It appears that DHS does not want to grant a period of admission extending beyond the point that is six months prior to the actual expiration of the passport to line up with the regulatory requirement that the actual expiration date of the passport be six months past the expiration of the contemplated period of stay. Mark is realizing his problem now. What can Mark do?

Had Mark taken immediate note of his I-94 expiration date upon his entry in August 2012, Mark could have first sought to obtain an extension of his passport as soon as possible. Then, Mark or his attorney could have contacted the local CBP Deferred Inspection Site in Chicago where Mark lives or at Mark’s actual port of entry at Newark Airport to request that the I-94 expiration date be corrected to correspond with the end date of the I-94 issued by USCIS on Form I-797. This may or may not have been successful as it appears to depend on the particular CBP Deferred Inspection Site.  For instance, some CBP sites take the position that they can only correct this I-94 within 30 days of admission. Other CBP sites will not correct this I-94. And other CBP sites take the position that this I-94 does not even need to be corrected as I-94 on the Form I-797 governs.

If CBP refused to correct the I-94, Mark could have taken a quick trip outside the U.S. prior to February 15, 2013. If he re-entered the U.S. on a valid H-1B visa and he presented his Form I-797, H-1B Approval Notice valid until March 10, 2014 and his newly extended passport, CBP would have issued him an I-94 valid until March 10, 2014. If Mark was unable to travel, his employer could also have filed an H-1B petition for extension with the USCIS taking the position that Mark’s H-1B status was set to expire on February 15, 2013. But none of these things happened. Mark has now remained in the U.S. for more than 180 days beyond the expiration of his I-94.

As Mark’s attorney correctly advised him, it is too risky to travel now. If he travels, Mark will have to apply for a new H-1B visa at a U.S. Consulate abroad and there is the possibility that the Department of State could deny Mark’s visa application and find him inadmissible into the U.S. for 10 years. The only course of action now is for Mark’s employer to file an H-1B petition for extension of Mark’s H-1B status in the U.S. Mark’s employer can argue that Mark was properly maintaining H-1B status in the U.S. despite the expiration of the I-94 issued to him when he last entered the U.S. because the I-94 issued to him on the Form I-797, H-1B Approval Notice remains valid. On the strength of that same I-94, it can be argued that Mark’s employer could continue to employ him. As mentioned above, some CBP offices take the position that the I-94 issued with the Form I-797, Approval Notice governs, that despite the issuance of an I-94 with an expiration date of February 15, 2013, Mark could remain in the U.S. beyond February 15, 2013 and until the 2014 expiration date of his H-1B status as granted by USCIS and as indicated on the I-94 issued by USCIS. There has been no official guidance to indicate that CBP has officially taken this position.  H-1B extensions filed with USCIS on this basis, however, have been successful. 

When filing the H-1B petition, Mark’s employer can also request that although the petition is being timely filed because Mark’s H-1B status will not expire until March 2014, should the USCIS take the position that Mark is not maintaining valid H-1B status, that USCIS forgive the unintentional delay in filing of the petition under 8 C.F.R. 214.1(c)(4). This regulation allows for an extension of stay for a beneficiary who has been unable to maintain his or her previously accorded status where it is demonstrated at the time of filing that (i) The delay was due to extraordinary circumstances beyond the control of the applicant or petitioner, and the Service finds the delay commensurate with the circumstances; (ii) The alien has not otherwise violated his or her nonimmigrant status; (iii) The alien remains a bona fide nonimmigrant; and (iv) The alien is not the subject of . . . removal proceedings under section 240 of the Act.

An H-1B extension filed on Mark’s behalf prior to March 10, 2014 will hopefully be approved presenting these arguments. However, there really is no substitute for the peace of mind that comes with ensuring that one never remains in the U.S. beyond the expiration date on the I-94. Foreign nationals need to remain vigilant when entering the U.S. making sure that they check their I-94 card (if issued one) or printout their I-94 from the CBP website. As attorneys, our best practice is encourage our clients to always update us on their travel dates and with copies of their I-94 upon re-entry into the U.S. 

(The blog is for informational purposes only and should not be relied upon as a substitute for legal advice.)

I PLEDGE ALLEGIANCE: THE NATURALIZATION OATH AND DUAL CITIZENSHIP

By Gary Endelman and Cyrus D. Mehta

The oath ceremony is often one of the most significant and profound in an immigrant’s journey towards American citizenship. It signifies the end of the immigrant experience and is the final threshold before one’s acceptance as a citizen. It is also a happy moment, and the ceremony is generally accompanied by a stirring speech from a judge or well-known public official. Still, the oath, as prescribed by section 337 of the Immigration and Nationality Act (INA), requires a serious commitment from the immigrant to forever renounce former allegiances, and also insists that the naturalization applicant take the oath without mental reservation or evasion. People may still wish to keep their former citizenship even while becoming American citizens for a number of reasons, such as ease of travel to the country to conduct business or to continue to access the country’s social security and healthcare system. Our blog examines the impact of the oath on the immigrant’s desire to retain his or her citizenship of the former country.  At journey’s end, we suggest that, contrary to popular assumption or common understanding, American law is much more tolerant towards and accepting of dual citizenship than most of us, lay and lawyer alike, have ever believed.

The current format of the oath of allegiance is as follows:

"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God."

When a UK citizen takes such an oath and becomes an American citizen, what is the effect of this oath on his or her UK citizenship? The oath requires the intending citizen to “absolutely and entirely renounce and abjure all allegiance” to any country that he or she has been a citizen. At the same time, it does not seem that this individual is required to give up UK citizenship. Moreover, since the United States manifestly cannot alter the relationship that any subject or citizen has with the country of their birth or prior citizenship,  the import of the naturalization oath lies  exclusively as an expression of American attitude and belief. The requirement to renounce all allegiance to your former country does not mean that you have to cease being a citizen of that country. The concept of dual citizenship or dual nationality has long been recognized, and the State Department in recognizing dual nationality states, “A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another.”

UK does not seem to mind when its citizens takes up the citizenship of another country, including   American citizenship, which requires the taking of the oath of allegiance. German citizens, in order to retain their citizenship while obtaining the citizenship of another country, must file a Beibenhaltungsgenehmigung prior to applying for American citizenship.  Some attorneys have reported isolated instances of naturalization examiners denying the N-400 application on ground that such a person will not be able to take the US oath of allegiance without reservation. Moreover, the Beibenhaltungsgenehmigung asks for the applicant’s personal information such as name, address, date of birth, and the length of residence outside Germany. The form also asks about the applicant’s ties to Germany and detailed reasons why the applicant has to become a citizen of US or another country. No declaration of primary or exclusive allegiance to Germany is required nor does the German procedure  demand or expect any act in derogation of US citizenship.

INA section 349 specifies several conditions under which a US citizenship may be lost. These include:

• becoming a naturalized citizen of another country, or declaring allegiance to another country, after reaching age 18;
• serving as an officer in a foreign country’s military service, or serving in the armed forces of a country which is engaged in hostilities against the US;
• working for a foreign government (e.g., in political office or as a civil servant);
• formally renouncing one’s US citizenship before duly authorized US officials; or
• committing treason against, or attempting or conspiring to overthrow the government of the US. .

At no time is the newly minted naturalized American required to give up his or her foreign passport nor is the subsequent use of such passport a potentially expatriating act under INA 349.  If Congress had wanted to make post-naturalization travel on a foreign passport a potentially expatriating act, it knew full well how to do so. Under the well-known doctrine of expressio unius est exclusio alterius (“ the express mention of one thing is the exclusion of all others”), such a conspicuous omission is a clear indication that the naturalized citizen does not endanger his or her American citizenship by future travel on a foreign passport, so long as she leaves and enters the United States on an American passport as required by INA 215(b).

The primary effect of recent developments in the US regarding dual citizenship has been to add the requirement that loss of citizenship can only result when the person in question intended to give up his citizenship. At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship. In Kawasita v United States, 343 US 717, 753(1952) the Supreme Court held that dual citizenship is “ a status long recognized in the law…the concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not, without more, mean that he renounces the other… when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other…” The trend in US law in recent decades has clearly and consistently been in favor or accepting dual citizenship. Former INA 352(a)(1) deprived a naturalized citizen of citizenship for residence in country of birth within 3 years of naturalization, which was found unconstitutional by the Supreme Court in Schneider v. Rusk, 401 US 815 (1971) and repealed in 1978. US citizens used to lose their citizenship for voting in foreign elections before the Supreme Court ruled otherwise in Afroyim v. Rusk, 377 US 163(1967) . In 1980, the Supreme Court  in Vance v. Terrazas, 444 U.S. 252 (1980) reaffirmed that US citizenship could not be taken away from a citizen absent the voluntary performance of an expatriating act done with the intent to give it up. Even the State Department since 1990 has adopted an administrative premise that a “routine” oath of allegiance to a foreign country that does not explicitly require the renunciation of US citizenship will be presumed to have been performed with the intent to retain such citizenship.

Afroyim and Terrazas, by making it more difficult to lose US citizenship, also served to cause the State Department to become more accepting of dual allegiance.  Danny Terrazas had obtained a Certificate of Mexican Nationality. Even though he lost his US citizenship, the effect of his case was to  make the USA more accepting of dual citizenship by making US citizenship more secure in a constitutional sense. This is further discussed at 7 FAM 1254(e):

“In light of Terrazas, the Department now presumes that U.S. citizens who naturalize as citizens of a foreign state or who declare their allegiance to a foreign state intend, absent evidence to the contrary, to retain their U.S. citizenship (22 C.F.R 50.40(a) and 7 FAM 1222). A U.S. citizen may readily rebut this presumption by either signing the “Statement of Voluntary Relinquishment of U.S. Citizenship” contained in DS-4079 (“Request for Determination of Possible Loss of United States Citizenship”) or by executing a written statement under oath indicating that he or she naturalized as a citizen of a foreign state or declared his or her allegiance to a foreign state voluntarily with the intention of relinquishing U.S. citizenship.”  7 FAM 1254(e)

Readers may also want to consult 7 FAM 1222(a) which  contains the post-1990 State Department presumption that naturalization in a foreign state, without more, is presumed by our State Department to have been done with  an intent to retain USC status and will not therefore cause loss of US citizenship.

During the late 19th and early 20th centuries, the US ratified a series of expatriation treaties (the "Bancroft treaties", named after American diplomat George Bancroft). The intent of these treaties was to prevent dual citizenship by providing for automatic loss of citizenship by foreigners who obtained US citizenship, or by Americans who obtained foreign citizenship. As a result of the various Supreme Court decisions on dual citizenship, however, the Bancroft treaties became legally unenforceable, and all of them have by now been formally abrogated by the US. One of these treaties (the one with Sweden) is mentioned in the Supreme Court's decision in Perkins v. Elg, 307 U.S. 325 (1939). The Bancroft treaties marked a rejection by the US of the common law doctrine of permanent allegiance that dates back to an old English case from 1608 called Calvin’s case.   Precisely because of its unique historical origins, born out of revolution and a rejection of the British monarchy, the US developed the notion of expatriation, that one can give up citizenship and acquire new allegiances.

The acceptance of dual citizenship represents a uniquely American return to the concept of permanent allegiance but in a new way. Under the Bancroft 19th century approach, the US embraced the right of its citizens to give up their old allegiances and become Americans. Indeed, the same Congress that defined citizenship in the 1866 Civil Rights Bill and the 14th Amendment, made the right of expatriation part of the corpus of US immigration law. Act of July 27, 2868, c h.249, Sect. 1, 15 Stat. 223 (now codified as INA 349(a)(6) and (7)) (“the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness.”) Now, in the 21st century, while expatriation remains a fundamental constitutional right, we are moving towards what may be called the “globalization of citizenship,” a more elastic but no less durable concept. Originally, common law denied the individual right to stop being a subject of the Crown. Now, the US embraces the right of naturalized citizens to retain their old allegiances while adding new ties to the USA. In effect, citizenship is shorn of its prior exclusivity and endowed with an expansiveness that it previously lacked so that a naturalized or birth right citizen can enjoy the privileges and protections of full membership in the American polity while still being able to retain traditional identities or benefit from the addition of new ones.

The final question is why do we need citizenship as a basis for defining the people of a country? There may come a time when a distinction between a citizen and a non-citizen may be as abhorrent as distinguishing people by the color of their skin. But until then, in a famous article by Alexander Bickel, Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), Professor  Bickel makes a point very much in alignment with our question, namely that one of the key reasons for the stability of the American political system, one of the “secret sauces” as we would like to say,  that has contributed to the acceptance and efficacy of our constitutional framework is the fact that traditionally citizenship does not play a supreme role nor endow its holders with rights and privileges far in excess of others. “It is gratifying,” he observes “that we live under a Constitution to which the concept of citizenship means very little.” Bickel at 367.   “Had citizenship been that important to the Founding Fathers, surely they would have bothered to define it.  Ironically, the surpassing relevance of citizenship lies not in the privileges it preserves or in the distinctions it enshrines but in  what Bickel terms its “minimalist role.”” It is precisely such modesty that serves to broaden opportunity for all, to give non-citizens what Jefferson called a “stake in society” so that even those who are not citizens identify the nation’s success and well being with their own.

Immigration law does not evolve in a vacuum but mirrors the society writ large. So, for example, the 1952 Act was chock full of ideological grounds of exclusion in the depths of the Cold War. The 1965 abolition of the national origins quota as an international civil rights bill passed the year after the 1964 civil rights act and the same year as the voting rights act.  The American Competitiveness in the 21st Century Act was passed at the height of Clinton prosperity So, with the growing acceptance of dual citizenship the fact that more Americans work abroad than ever before, that American business has gone global, that jet travel has long since become common and is no longer the province of the rich or powerful, that growing numbers of Americans go to college and beyond, that the world is increasingly flat with transfer of technology crossing national boundaries- all of this has made the world smaller, more of a global village. As this has happened, as our horizons have widened, the notion of dual allegiance has become more commonplace and more acceptable to Americans own sense of what kind of a people they are and what manner of nation we have become.

(Guest author Gary Endelman is the Senior Counsel of FosterQuan)

FREE THE CHILDREN: PARENT'S ABANDONMENT OF GREEN CARD SHOULD NOT BE IMPUTED ON CHILD

By Cyrus D. Mehta

There are a number of  unfortunate cases where the parent abandons lawful permanent resident (LPR) status by staying outside the United States resulting in the child’s LPR status also being abandoned. Should the child’s LPR status be deemed abandoned even if the child had no intention to abandon that status?

The answer, unfortunately, is “Yes,” but there might still be grounds for putting up a fight. There is a precedent decision of the Board of Immigration Appeals, Matter of  Zamora, 17 I&N Dec. 395 (BIA 198), which holds that if the parent abandons his or her LPR status while the child is in the custody and control of the parent, then the parental abandonment may be imputed to the child. The reasoning in Matter of Zamora is based on the premise that a minor child cannot legally possess an intent to remain in the United States distinct from his or her parent’s intent. Even the State Department’s Foreign Affairs Manual acknowledges that a child under the age of 16 years is not considered to possess a will or intent separate from that of the parent with regard to a protracted stay abroad. 9 FAM 42.22 N5.

Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has been subject to much interpretation by the Circuit Courts. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.”If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

Therefore, when an LPR is unable to establish that the trip abroad was temporary under the formula established in Singh v. Reno, and thus deemed to have abandoned that status, it would be imputed to the child. I question whether it is good policy as there may be a number of situations where a child may possess a separate intention from that of the parent. The Ninth Circuit Court of Appeals in Khoshfahm v. Holder, 656 F.3d 1147 (9th Cir. 2011), while affirming Zamora,  raised this possibility by citing the example of LPR parents who leave the country, but leave their child in the US to attend school or live with a relative. Under the principle set forth in Zamora, the parents’ length of stay abroad, along with a lack of continuous intent to return to the US, could result in a finding that they had abandoned status, but it would be unreasonable to impute the parents’ abandonment to the child who never left the US. There are other situations too, where say an abusive parent who is an LPR takes the child abroad and does not allow the child to return back to the US. This would result in an unfair outcome, and is inconsistent with prevailing immigration policy. The Violence Against Women Act ensures that battered spouses, children and other relatives do not need to depend on the abuser’s status to apply for immigration benefits by enacting INA sections 204(a)(1)(A) and (1)(B), which allow battered spouses of US citizens and permanent residents to self-petition for permanent residency even when the abusive spouse either refuses to sponsor or has withdrawn support on a previously filed I-130 petition.  The intent of an abusive parent can also be considered as analogous to the fraudulent conduct of a parent, which is not imputed to the innocent child.  See Singh v. Gonzales, 451 F.3d 400, 409-410 (6th Cir. 2006).

The argument to not attribute any abandonment by the parent on the child is further bolstered when the parent legally ceases to be a custodial parent, possibly due to the abusive relationship, and this is supported by the State Department guidance at 9 FAM 42.22 N5(c), which provides:

In the case of LPR children who you believe spend more than one year outside the United States as a result of an abduction by a non-custodian parent, please contact Overseas Citizen’s Services, Office of Children’s Issues (CA/OCS/CI) and the Post Liaison Division (CA/VO/F/P) to determine the proper course of action. While a returning resident visa is the preferred way for the child to return to the United States and be admitted in the proper status, a non-custodial parent may not be willing to cooperate in order to complete the returning resident visa process. CA/OCS/CI, CA/VO/F/P, and CA/VO/L/A can advise you on options in coordination with DHS to allow the child to travel back to the United States.

The Ninth Circuit in Khoshfahm also held that a child can have his or her own intent upon reaching 18^th, which is like the State Department’s policy, although the State Department cuts off the age at 16.  Thus, a child should be able to establish his or her own intent independent o the parent’s intent after 16 or at least by 18.

It was thus heartening to find an unpublished decision by Immigration Judge Philip J. Montante, Jr. on AILA InfoNet at Doc. No. 13112247 (posted 11/22/13), which held that the abandonment of LPR status by a divorced parent could not be imputed to the child who was under the age of 18 where the divorce decree specifically required the child to travel to the US to visit her father resided in order to maintain her US residency. The child was also able to demonstrate that she visited her father in the US several times. Hats off to attorney Eric Schulz in Buffalo, NY, who was the attorney for the child respondent!

When an LPR child finds himself or herself in such a situation and has been outside the US for more than a year without a valid reentry permit, the child may be eligible to apply for an SB-1 visa as a returning legal permanent resident at a US consular post. Alternatively, the child can also arrive at a port of entry in the US and be prepared to submit a Form I-193 waiver under INA section 211(b) as a returning legal permanent resident who has a valid Form I-551 (green card) but has been outside the United States for more than one year. This is risky, however, because If the child is not waived into the US, then the child will be issued a Notice to Appear, alleging that he or she is an immigrant not in possession of a valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry document required by the INA. The NTA will most likely charge the child as being subject to removal pursuant to INA section 212(a)(7)(A)(i)(I). Although the child will be subject to a removal hearing before an Immigration Judge, where an alien has a colorable claim to returning resident status, the government bears the burden of proving abandonment of lawful status “by clear, unequivocal and convincing evidence.” See e.g. Matadin v. Mukasey, 546 F.3d 85 (2d Cir. 2008).  

Attorneys representing LPR children who have been deemed to have abandoned their LPR status through imputation should, where the facts warrant,  be prepared to chip away at the principle set forth in Zamora. It is no longer fair to reflexively impute the abandonment of a parent’s LPR status onto a child, especially in situations where the child has expressed an intent contrary to the parent.

(This blog is for informational purposes only, and should not be considered as a substitute for legal advice)