HIZAM v. KERRY: IF THIS IS THE RIGHT RESULT UNDER CURRENT LAW, THEN THE LAW NEEDS TO BE CHANGED

By David A. Isaacson

Imagine for a moment that, since you were nine, your parents had told you that you were a U.S. citizen.  And not just told you: your father filed papers with the U.S. government, and obtained official proof of your citizenship.  You grew up in the United States from age nine onward as a U.S. citizen, attended school and college here, and got a job here.  Imagine further that more than twenty years later, the government suddenly told you that your parents had been wrong: you were not a U.S. citizen after all, and thus you had no right to be here.  

Surely, you would think after recovering from your initial shock, this must be because your father did something improper back when you were a child.  Perhaps he had been lying to the government, and to you, all along?  Perhaps the papers he filed with the government to obtain proof of your citizenship were fraudulent?  Surely he must have done something wrong, for the government to take away your citizenship after all these years.  Surely they would not simply take away the citizenship you had always thought you had, unless there were some fault on your family’s side.

But if that was what you thought, it is you who would be wrong.  This is the story of Abdo Hizam, who the State Department decided in 2011 was not actually a U.S. citizen, even though they had repeatedly documented him as a citizen since 1990.  According to the State Department, it was the government, not Hizam or his father, who made the mistake; and yet it is Hizam, not the government, who must pay the price.  On March 12, 2014, the Court of Appeals for the Second Circuit, in the case of Hizam v. Kerry, ruled that the State Department was right, and that Hizam has no legal remedy.

Abdo Hizam was born in 1980.  As recounted in a 2012 New York Times article, his father, a naturalized U.S. citizen, worked at that time at a Chrysler plant in Michigan, while his mother was living in Yemen.  In 1990, as explained in the Second Circuit’s opinion, Hizam’s father submitted an application for a consular report of birth abroad (“CRBA”) for his son, which even the government agrees was entirely truthful, and which was granted, documenting Hizam as a U.S. citizen.  A CRBA has “the same force and effect as proof of United States citizenship as certificates of naturalization or of citizenship issued by the Attorney General or by a court having naturalization jurisdiction” according to 22 U.S.C. §2705.

Also in 1990, Hizam’s maternal grandparents, who like his father lived in Michigan, visited Yemen and brought Hizam back to the United States. After moving to the United States with his grandparents, Hizam grew up here and built his life here.  As the Second Circuit explained: 

After receiving a CRBA and passport, Hizam traveled to the United States to live with his grandparents. Hizam attended elementary, middle and high school in Dearborn, Michigan. He became fluent in English and did well in school, where he was a member of his high school’s swim team. Hizam began working while in high school, and worked two jobs to support himself while attending college in the United States. He graduated from Davenport University in 2003 with a degree in business administration. He eventually moved to the Bronx, New York, to live with his brothers. During his residence in the United States from 1990 through 2002, his passport was renewed twice without incident.
In 2002, Hizam traveled to Yemen, where he married, and subsequently had two children. Between 2002 and 2009, Hizam traveled back and forth regularly between the United States and Yemen, where his wife and children reside. At the time he commenced this litigation, Hizam worked at the family business, Moe’s Deli, in New York. He is the primary caretaker for one of his brothers, a minor, and is pursuing a master’s in business administration at Mercy College.

Hizam v. Kerry slip op. at 7.

When Hizam in 2009 sought to obtain CRBAs and U.S. passports for his own children, the State Department began a review of his citizenship status that ended in the cancellation of his passport and CRBA on the ground that he was not a U.S. citizen.  As the Second Circuit explained:

In 2009, Hizam applied for CRBAs and U.S. passports for his two children at the U.S. Embassy in Sana’a, Yemen. U.S. officials at the embassy told Hizam there was an issue with his passport, and retained his passport for about three weeks. After his passport was returned, Hizam returned to the United States. In April 2011, while Hizam was in the United States, the State Department notified him via letter that his CRBA and passport were wrongly issued “due to Department error.” The letter stated that while “[t]his error was evident from your CRBA application[,] there is no indication that your father fraudulently obtained citizenship documentation for you,” and “there is no evidence of fraud on your part.” It concluded that “[u]nfortunately . . . the Department of State lacks authority to create a remedy that would in some way confer U.S. citizenship on anyone absent a statutory basis for doing so.” Subsequent letters from the Department of State informed Hizam that his CRBA had been cancelled, and his passport revoked, and requested that he return those documents, which he did in May 2011.

Hizam v. Kerry slip op. at 8.

The problem, it appears, was that Hizam’s father’s CRBA application for him had been adjudicated based on the wrong version of the relevant statute.  Generally, the law governing the acquisition of citizenship by a child is that in effect at the time of the child’s birth.  The law had changed between the time of Hizam’s birth and the time that his father applied for his CRBA (in 1986 to be precise), however, and the consular officer seems to have applied the new version of the statute, in effect at the time of the application, rather than the old version, in effect at the time of Hizam’s birth.  To quote again from the Second Circuit’s opinion:

Hizam’s father truthfully stated in the [CRBA] application that he had arrived in the United States in 1973, and was physically present in the United States for approximately seven years at the time of Hizam’s birth in October 1980. . . . . 

At the time of Hizam’s birth, the child of a United States citizen born outside of the United States was eligible for citizenship if the parent was present in the United States for at least 10 years at the time of the child’s birth. 8 U.S.C. § 1401(g) (Supp. III 1980). However, the law had changed by the time Hizam’s father sought a CRBA on Hizam’s behalf. The amended law required the parent to be present in the United States for just five years. 8 U.S.C. § 1401(g). It appears that the consular officer erroneously applied the five ‐ year rule in granting Hizam a CRBA. 

Hizam v. Kerry slip op. at 6-7.

Hizam sued for the return of his CRBA, and won in the district court, but was rebuffed at the Second Circuit.  The Court of Appeals concluded that the statute authorizing the State Department to revoke CRBAs was not impermissibly retroactive, and, perhaps more startlingly, that the State Department’s long delay in correcting its error, even though undeniably prejudicial to Hizam, did not entitle him to any remedy despite the compelling equities of his case.  As the Court explained:

In the alternative, Hizam argues that the State Department should be precluded from revoking his CRBA under a laches theory, because the State Department unreasonably delayed revoking the CRBA, and Hizam was prejudiced by the undue delay. Laches is an equitable defense that requires proof of lack of diligence by the party against whom the defense is asserted, and prejudice to the party asserting the defense. See Costello v. United States , 365 U.S. 265, 281 ‐ 82 (1961). The State Department certainly lacked diligence in correcting its error, as the correction did not occur for 21 years, during which time Hizam used his CRBA to renew his passport twice. And Hizam was certainly prejudiced by the State Department’s delay in correcting its error, because, as he delineates in his brief, there were several other avenues to citizenship that he could have pursued but are now foreclosed to him. 

The equities in this case overwhelmingly favor Hizam. Indeed, even the State Department recognizes “the considerable equities of his case.” Despite sympathy for Hizam’s position, however, we conclude that courts lack the authority to exercise our equitable powers to achieve a just result here. Well ‐ settled case law bars a court from exercising its equity powers to naturalize citizens. See Pangilinan , 486 U.S. at 885; Fedorenko v. United States , 449 U.S. 490, 517 (1981); Wong Kim Ark , 169 U.S. at 702. The courts lack authority to provide Hizam with the relief he seeks. 

Hizam v. Kerry slip op. at 20-21. The Court quoted the State Department’s representation that it “has brought the matter to the attention of [USCIS], and will continue to support other lawful means to provide relief to Hizam, including a private bill in Congress should one be introduced.”  Id. at 22.  If no private bill is introduced, there is no obvious route back to citizenship or even lawful permanent residence for Hizam, absent further factual developments not evident from the Second Circuit decision.

It is worth pausing at this point to discuss some of the “several other avenues to citizenship” that the Court acknowledged Hizam “could have pursued but are now foreclosed to him.”  Hizam v. Kerry slip op. at 21.  Had Hizam and his father been notified of the problem before Hizam turned 18, for example, Hizam’s father could have sought expedited naturalization of his son under INA §322, 8 U.S.C. §1433.  That provision, as it existed in the years before 2000, allowed a U.S. citizen parent to apply for expedited naturalization of a child if, among other things, the parent had been physically present in the United States for the period of five years, two after the age of fourteen, that would be required to transmit citizenship automatically to a child born after 1986.  See See 8 U.S.C. §1433(a)(5) (1999).  (Under current law, INA §322 applies only to children residing outside the United States with their U.S. citizen parents, likely because under INA §320, a child under the age of 18 who is residing inside the United States as a lawful permanent resident in the legal and physical custody of a U.S. citizen parent becomes a U.S. citizen automatically, without the need for a separate application other than to provide evidence of the status they have already come to possess.)  Or, if the problem had been discovered after Hizam turned 18 but before he turned 21, his father could perhaps have sponsored him for lawful permanent residence as the immediate relative of a U.S. citizen.  See INA §201(b)(2)(A)(i) (describing “children . . . of U.S. citizens”) as immediate relatives; INA §101(b)(1) (describing a “child” in part as “an unmarried person under twenty-one years of age”).  Now, however, neither of those options are available.

One small consolation for Mr. Hizam is that he likely qualifies as inspected and admitted to the United States, should he in the future, for example, enter into a bona fide marriage with a U.S. citizen and seek adjustment of status under INA §245(a) as an immediate relative of that U.S. citizen.  Under the rule of Matter of F-, 9 I&N Dec. 54 (Reg. Comm’r 1960, Asst. Comm’r 1960), one who innocently enters the United States under a claim of U.S. citizenship that turns out to be incorrect is inspected and admitted, even though one who enters under a knowing false claim of U.S. citizenship is not.  

The BIA recently restated “the long-standing rule that an alien who enters the United States by falsely claiming United States citizenship effectively eludes the procedural regularity of inspection by an immigration officer.”  Matter of Pinzon, 26 I&N Dec. 189, 191 (BIA 2013). But since Matter of Pinzon cited Matter of F- with approval, see Matter of Pinzon, 26 I&N Dec. at 191, the best reading of Matter of Pinzon appears to be that “falsely claiming United States citizenship” within the meaning of that case implies doing so intentionally, knowing the claim to be false.  This would be consistent with the conclusion of the State Department and the DHS General Counsel that inadmissibility under INA §212(a)(6)(C)(ii)(I), which refers to “Any alien who falsely represents, or has falsely represented himself or herself to be a citizen of the United States for any purpose or benefit under this Act . . . or any other Federal or State law,” applies only to “a knowingly false claim”, as explained at Note 11(b.)(1) of Volume 9, section 40.63 of the State Department’s Foreign Affairs Manual.  In normal English usage, we would not describe someone who says something which they fully believed to be true as having “falsely” claimed it—rather, we might say that they had done so “incorrectly”, or “erroneously”.  An innocent but erroneous claim to U.S. citizenship is neither a ground of inadmissibility, nor a basis for invoking the exception to inspection and admission recognized by Matter of Pinzon. Thus, it can still qualify as an inspection and admission under Matter of F-.

Still, to say to someone in Hizam’s position that he has been inspected and admitted, but has no right to remain in the United States unless he may seek adjustment of status as the immediate relative of a U.S. citizen, is extremely harsh.  Being well over the age of 21, and married, he is no longer the immediate relative of his U.S. citizen father.  See INA §201(b)(2)(A)(i); INA §101(b)(1).  And because Hizam’s father believed him to be a U.S. citizen, he had no reason to file a petition for his son before his son turned 21 and got married.  See INA §201(f)(1) (providing that age for purposes of qualifying as an immediate relative is determined on the date of filing of the petition).  As noted above, had the State Department corrected its error any time within more than 10 years after the error was made, Hizam could easily have become a Lawful Permanent Resident; now he cannot.  And had the State Department corrected its error less than 8 or so years after it was made, Hizam could easily have become a U.S. citizen under INA §322; now he cannot do that either.  Hizam’s father could theoretically file a petition for him under the Family Third Preference for married sons and daughters of U.S. citizens, as established by INA §203(a)(3), but the latest Department of State Visa Bulletin indicates a wait time of well over ten years before an immigrant visa number is available based on such a petition.  (To be precise, the Visa Bulletin indicates that those who had petitions filed on their behalf before July 15, 2003, should be able to seek immigrant visas based on those petitions in April of 2014.)

If the decision in Hizam v. Kerry is not overturned (either by the Second Circuit sitting in banc or by the Supreme Court), Congress should give serious consideration to addressing this problem by legislation.  With respect to Hizam himself, the problem can perhaps as the State Department suggested be solved by a private bill, granting him citizenship or at least lawful permanent residence.  But the problem is a broader one. Those who, through no fault of their own or of their parents, are incorrectly told by the U.S. government that they are U.S. citizens, and who in reliance on that advice live in the United States and/or forego other opportunities which would exist to gain citizenship or lawful permanent residence, should also be eligible for U.S. citizenship, or at least for lawful permanent residence.

If Congress will not allow favorable determinations of U.S. citizenship to stand when they are made due to government error, it could at least amend INA §322  to give those who miss their opportunity to naturalize as children due to such error another chance. Currently, that statute provides in relevant part that a parent who is a citizen of the United States and meets the relevant residence requirements may apply for the naturalization of a child who is “under the age of eighteen years,” INA §322(a)(3), and “is residing outside of the United States in the legal and physical custody of the applicant,” INA §322(a)(4). This author would suggest the addition of a new subsection of §322, providing that a person who is over the age of eighteen years (and who therefore may not be in anyone’s custody) may be naturalized under INA §322, upon appropriate application by that person, if at some time prior to the person reaching the age of eighteen years his or her parent was advised by the U.S. government, without any misrepresentation on the parent’s part, that their child was already a U.S. citizen, and this erroneous advice was not corrected until after the child reached the age of seventeen years. (Some margin for error before the age of eighteen would have to be allowed, since being advised a day before your child’s eighteenth birthday that he or she was not actually a U.S. citizen, as you had previously supposed, would not provide sufficient time to get the child sworn in before age eighteen.)

Alternatively, if Congress is reluctant to allow expedited naturalization of someone in Hizam’s position who is over the age of 18, it should amend the registry statute, INA §249, which currently allows the creation of a record of lawful admission for permanent residence of persons of good moral character who have resided in the United States since prior to January 1, 1972. That statute could be altered to include persons of good moral character who have entered the United States after January 1, 1972, on a U.S. passport which was issued to them without any misrepresentation by them or anyone acting on their behalf, but who are later determined not to be U.S. citizens.

If even this remedy is considered too extreme, then at the very least, INA §201(f)(1) should be amended to state that a child’s age, for purposes of qualifying as an immediate relative, is determined either (A) on the date of filing of a petition by that child’s parent, or (B) on the date the child or the child’s parent is informed by the U.S. government, due not to any misrepresentation by either of them but to government error, that the child is a U.S. citizen (and that there is therefore no point in filing a petition). This would not help Mr. Hizam himself, due to his marriage, but it could help others in similar positions.  

What should not happen, in any case, is for the law to remain the way it evidently is today, according to the Second Circuit’s decision.  It is unfair and outrageous to place someone in a position where, through no fault of their own or their parents, they can spend decades in the United States under the impression that they are a U.S. citizen, and then be told that they actually lack not only U.S. citizenship but any straightforward way of even gaining the legal right to reside in this country.

GOP PRINCIPLES ON IMMIGRATION - A PATH TO LEGAL STATUS

By Gary Endelman and Cyrus D. Mehta

The Congressional Republicans finally issued a brief document outlining its principles on immigration on January 30, 2014. As anticipated, and unlike the Senate bill S. 744, the GOP proposes a path to legal status with no special pathway to citizenship. The document states:

There will be no special path to citizenship for individuals who broke our nation’s laws that would be unfair to those immigrants who have played by the rules and harmful to promoting the rule of law. Rather, these persons could live legally and without fear in the US, but only if they were willing to admit their culpability, pass rigorous background checks, pay significant fines and back taxes, develop proficiency in English and American civics, and be able to support themselves and their families (without access to public benefits). Criminal aliens, gang members, and sex offenders and those who do not meet the above requirements will not be eligible for this program. Finally, none of this can happen before specific enforcement triggers have been implemented to fulfill our promise to the American people that from here on, our immigration laws will indeed be enforced

Even if there is no special path to citizenship, the GOP document does not state that such legalized individuals cannot seek permanent residence and citizenship through normal channels within the existing, and most likely a reformed immigration system. While it would be really beneficial for the integration of the nation to have a special pathway to citizenship, like the Senate bill after individuals are put in a provisional status for 10 years and 3 more years as a permanent resident, such a proposal would still be welcomed by those who are out of status or have removal orders, with no other forms of relief to remain in the US. They will be able to live and work freely, and even potentially travel outside the US.  For those who presently lack such basic freedoms, who among them would not readily embrace their new life even if it is not all we or they would have hoped for?  If the existing immigration system is reformed to include more pathways to legal residence, then such individuals can still hope to become US citizens. Indeed, they could also potentially become citizens more quickly than the 13 year special path to citizenship under the Senate immigration bill.

Thus, as explained in our prior blog, the first order of priority in any comprehensive immigration proposal is to reform the existing legal immigration system. If we expand visa numbers available in the various immigrant visa categories, as well as create more pathways for people to become permanent residents, those already waiting should be able to become permanent residents more quickly and we would even have less illegal immigration in the future. Making legal immigration possible makes illegal migration unnecessary. The 10 million undocumented non-citizens who get legalized, but may not have a direct path to citizenship, could benefit and find other pathways through a reformed and expanded immigration system. Many may have adult citizen children or spouses who can petition for their lawful permanent resident status.  Indeed, most of the undocumented who would legalize may already be working or have their own businesses. In a reformed immigration system, they should be able to apply for green cards through their employers or by virtue of having businesses relatively quickly, and then be on a path to citizenship. For example, an undocumented nanny who provides valuable childcare while the parents work, after obtaining a probationary legal status, should be able to get sponsored by an employer for a green card relatively easily and quickly under a reformed immigration system. The same should be true for one who has owned a business for a certain period of time and has hired US workers or has generated a certain amount of revenues over a few years.

Indeed, this is how all nonimmigrants get green cards, and then become US citizens. The only problem is that it is too hard and takes too long under the existing system. Then, there are also few avenues for obtaining a green card. If the GOP cannot provide a direct pathway to citizenship, let’s not fuss too much about it and let’s get on with the goal of reforming the immigration system. In fact, we should use it as a bargaining chip to ensure that we reform the system in such a way that there would be many other readily available paths to citizenship. Then, not having a direct path through a legalization program may not matter so much! Now is the time to bring the undocumented from the shadows into the bright sunshine of freedom. By giving them a stake in society in a fair and balanced manner that respects the law and promotes our values, Congress will make us all proud and turn the page on the next chapter of the American story. 

Whether to have a special pathway is not the only sticking point. The GOP document adamantly refuses to go to conference on the Senate’s immigration bill. Still, the other goals in the GOP principles have much in common with the Senate bill. Border security and interior enforcement must come first, there must be a fully functioning entry-exit visa tracking system, and like the Senate bill, a firm insistence on abandoning the paper-based work eligibility verification system with an electronic version. Such common goals can potentially still result in a compromise between the Senate and the House, even if the GOP document presently states that it will not go into conference on the Senate bill. 

Of course, the GOP appears to display a complete dislike for President Obama’s prosecutorial discretion policies – and there will also most likely be a legislative proposal stemming from it that would prevent the President from stopping immigration enforcement. On the other hand, prosecutorial discretion has always existed in law enforcement from time immemorial, and it will be impractical to prevent the Executive from exercising this prerogative. It is widely acknowledged that we have a broken immigration system, which has contributed to the buildup in the undocumented population. In the absence of Congressional intervention to fix the system for all these years, any administration, devoid of ideology, would have exercised discretion to remedy the imbalance. People on all sides of the political spectrum acknowledge that it would take about 30 years if the government could hypothetically deport all the 10 million + undocumented persons in the US given its current resources. If it expended more money and resources, it would be counter-productive, in addition to creating a Gestapo-like state tearing families apart, as these precious resources could be efficiently spent elsewhere. Rather, it was wiser for this Administration to use its executive power to tap into the resources, energies and dreams of people who can ultimately benefit the United States. This happened with the Deferred Action for Childhood Arrivals (DACA) program. The young individuals who have been able to legalize their status have gone onto completing college, getting jobs and benefiting the country.  The GOP document recognizes that it is time to allow children who were brought into country for no fault of their own, and who have no status, to obtain both legal residence and citizenship. DACA is a clear example of how bold administrative action by the Executive, based on prosecutorial discretion, can build consensus around a righteous principle that can ultimately be enacted into law. If the immigration system becomes more viable after reform, there will be less of a need for prosecutorial discretion. Still, there may be some cases that would deserve the exercise of discretion, and this should never be taken away from a President, whether Democratic or Republican, through legislation. 

Finally, the GOP document recognizes the need to attract foreign nationals who pursue degrees in American colleges to remain in the US, so that they can use their expertise in US industries that will spur economic growth and create jobs for Americans. “When visas aren’t available, we end up exporting this labor and ingenuity to other countries,” the document states. No one can dispute this.   The GOP document, also takes into account the need for future flows of temporary workers to come into the US legally in order to sustain the needs of the agricultural industry, among others.

All advanced industrial economies throughout the world, including the United States, must confront the prospect of dealing with aging populations and the societal challenges that result. Demographers have a term for those societies where the birth rates have fallen so low that they do not keep up with those who have died:” demographic winter”. Some nations, such as Japan, Italy and Russia are at or will soon reach this state of “demographic winter”.  In the United States, the Census Bureau estimates that, as the massive baby boomer generation slouches towards retirement, the number of elderly people over age 65 could soar to 82 million by the year 2050. Immigration provide the magic elixir , the fountain of youth. Compounded by growing automation, America will have fewer workers to pay for more social benefits to sustain a hugely expanded senior citizen population.  If such demographic projections are correct, continued high levels of immigration will be necessary to provide a large enough workforce to sustain a rapidly aging citizenry. Absent a sudden and unexpected rise in the birth rate, there is no other answer.

It is time that both sides of the aisles compromise to forge immigration reform that would be beneficial to the United States. According to a new Pew Report,  America with a 28% growth rate is in good shape, compared to its economic rivals including China and Brazil, and we have immigrants to thank for this. America can only continue to rely on immigrants to boost its workforce, widen the tax base and support the social security net if it admits more immigrants through immigration sensible reform. The GOP document does provide some chance for this to happen in 2014. 
  
There is a larger reason beyond the merits of the House GOP proposals why all sides should welcome this statement of principles as a step in the right direction.  It is vitally important for America to remain a healthy and functioning democracy that it have a political system where both major political parties accept the complexity of governing and confront the challenges of modernity. We tend to forget it now, and so do they, but the Republican Party was born in protest. The political expression of the Northern revulsion against the Dred Scott decision, the GOP embodied an aggressive nationalism that helped to usher America into the modern era. For some time now, there has been a civil war within the GOP over immigration between those who viewed immigrants as an asset to be maximized versus those who saw it as a problem to be controlled. There are historical antecedents for both camps. The pro-side can look back to Theodore Roosevelt, the first modern Republican president who was an outspoken advocate for the immigrant masses of the early 20th century while the nativist wing finds their ancestral justification in 1924 Immigration Act whose purpose and effect was to go back to the America of 1890 before the tsunami of Jewish and Catholic migration. Just as America needs true immigration reform, it needs both the Republican and Democratic Parties to be national in scope and outlook. What happened today is step in this direction. As the refugee Austrian actor Paul Heinreid (Victor Lazlo) tells Humphrey Bogart (Richard Blaine) in the immortal movie “Casablanca”: “Welcome back to the fight. This time I know that our side will win.”

HIGHLIGHTS OF GOOD MORAL CHARACTER IN NATURALIZATION

By Myriam Jaidi

In order to qualify for naturalization, an applicant must demonstrate that she is or was a person of good moral character (GMC) throughout the relevant statutory period and through the time she takes the oath of allegiance.  See Immigration and Nationality Act (INA) § 101(f); Title 8, Code of Federal Regulations (CFR) § 316.10.  For the average person, GMC may not be an issue – the average person will have the requisite “character which measures up to the standards of average citizens of the community in which the applicant resides,” USCIS Policy Manual, Volume 12, Part F (hereinafter “PM”), Ch.1A, and will not be statutorily precluded from showing GMC.  GMC “does not mean moral excellence . . . .’” Matter of Sanchez-Linn, 20 I&N Dec 362, 366 (BIA 1991). GMC is “is incapable of exact definition,” Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961), and extremely complex.  Because the statute and regulations governing the meaning of GMC cover a broad range of conduct and acts, and because officers will be exercising discretion in making a determination, an advocate must carefully review GMC with a client to ensure any potential issues are analyzed and addressed. 

There are statutory and regulatory bars to GMC, as well as a catchall provision which allows an adjudicator to exercise discretion and find a lack of GMC where none of the other bars apply, and it is important to keep them all in mind.  Having an issue that could result in a negative determination of GMC can do more than prevent a person from obtaining U.S. citizenship – it can signal that the individual may be removable and may even be subject to mandatory detention if put in removal or if the person returns to the United States after traveling abroad.  

USCIS officers must assess GMC on a “case-by-case” basis, 8 CFR § 316.10(a), examining an applicant’s conduct and acts during the relevant statutory period immediately preceding the application – 5 years as a general matter, INA 316(a)(1), 3 years for those who have been residing with their U.S. citizen spouse for that period, INA 319(a), and 1 year for those who have served honorably in the U.S. military, 8 CFR § 329.2(d).  However, officers are not limited to the statutory periods, and can go back in time as far as they believe necessary in assessing whether a person has experienced a “reform of character,” or if the officer believes that “the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.”  8 CFR § 316.10(a)(2).  

An officer must consider “the totality of the circumstances and weigh all factors” when considering reformation of character in conjunction with GMC within the relevant period. PM Ch.2B.  The PM provides officers with the following list of factors to consider in assessing an applicant’s current moral character and reformation of character:  family ties and background; absence or presence of other criminal history; education; employment history; other law-abiding behavior (meeting financial obligations, paying taxes, etc.); community involvement; credibility of the applicant; compliance with probation; length of time in United States.  Id.  A GMC determination therefore involves a balancing test and advocates should make a strong showing of equities where any negative factors that do not constitute a bar to establishing GMC are present, to present a strong foundation upon which an adjudicator may be swayed to find in an applicant’s favor.  

Absolute Bars to Showing GMC

An individual cannot show GMC if he or she has: 

• Been convicted of murder at any time (8 CFR § 316.10(b)(i));
• Engaged in persecution, genocide, torture, or severe violations of religious freedom at any time (INA § 101(f)(9));
• Been convicted of an aggravated felony as defined in INA § 101(a)(43) on or after November 29, 1990 (INA § 101(f)(9), 8 CFR § 316.10(b)(ii)).

Note that an individual who was convicted of an aggravated felony before November 29, 1990 and does not otherwise fall into any of the permanent or conditional preclusions to showing good moral character can naturalize.  They face an uphill battle and must demonstrate that they have made exemplary efforts to redeem themselves, but it can be done, if not at the USCIS level, then in federal court.  For an excellent example of the showing that needs to be made, and how advocates can prepare not only an application but also their client for the application process, see Lawson v. USCIS, 795 F.Supp.2d 283 (SDNY 2011), discussed at length in a previous blog post.  Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit, sitting by designation in district court, found that Lawson, a Vietnam War veteran honorably discharged from the Marines, had established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985. Judge Chin found Lawson had paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates” and continued his efforts at reform after he was released.  Cases like Lawson demonstrate that in preparing a naturalization application for a client with a criminal history or any other GMC issue, it is important to pull out all the stops and be creative about demonstrating all of the ways in which your client is an asset to the community. Make sure they are able to communicate the many ways in which they participate in and contribute to the various communities with which they may interact.  

Conditional Bars for Acts in the Statutory Period

Beyond the absolute bars to establishing GMC, the statute and regulations provide a laundry list of what USCIS refers to as “conditional bars” to establishing GMC, found in INA § 101(f) and 8 CFR 316.10: 

• One or more crimes involving moral turpitude
• Convicted of two or more offenses, aggregate sentence imposed five years or more
• Controlled substance violation
• Admitting to any of the above
• Incarceration for aggregate of 180 days due to a conviction
• False testimony
• Prostitution or commercialized vice
• Smuggling of a person
• Polygamy
• Gambling
• Habitual drunkard

Here are highlights of some of the more complex conditional bars: 

Crime Involving Moral Turpitude

Being convicted of a crime involving moral turpitude (CIMT) during the statutory period precludes a finding of GMC.  This excludes a conviction for a purely political offense as well as an offense that falls within the petty offense exception in INA § 212(a)(2)(ii)(II) (maximum penalty possible does not exceed one year and the person was sentenced to 6 months or less imprisonment) or the youthful offender exception in INA § 212(a)(2)(ii) (committed crime when under 18, crime committed (and person released from resulting confinement) more than 5 years before application for the benefit).  

If the client is unclear on whether they have been convicted or what they may have been convicted of, make sure you obtain any and all records relevant to their brush with the criminal justice system.  You can have them request a copy of their file from their criminal defense attorney, obtain an FBI rap sheet, have them go to the court where their case was heard and request a record or court disposition.  Try to get as much documentation as possible and do not rely solely on the FBI rap sheet because it may be incomplete.  

Like GMC, CIMT is not defined in the INA or implementing regulations and is incredibly complex.  Moral turpitude refers generally to conduct that “shocks the public conscience,” conduct that “is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. . . . Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995). Key to the determination of moral turpitude is “whether the act is accompanied by a vicious motive or a corrupt mind.” Id.  Each statute must be examined to determine whether it involves moral turpitude, but some common elements of CIMTs are fraud, theft (intent to permanently deprive the owner of property), crimes involving bodily harm to another with an intent to harm, and even some instances of harm resulting from criminally reckless conduct.  

The CIMT concept has developed over time through a multitude of court decisions, and the steps one must take in analyzing whether a crime amounts to a CIMT continues to be fought out in the courts.  The determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue, and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law) or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things. Because the topic of CIMTs can fill many volumes, an in-depth analysis of how to identify a CIMT is beyond the scope of this blog post, and the reader is referred to resources such as Mary E. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (5th Ed. 2012)(an AILA publication), that deal in more depth with CIMTs and other issues relating to crimes and immigration.

Keep in mind that in addition to precluding a finding of GMC, one CIMT within 5 years of admission where the crime is one for which a sentence of one year or more may be imposed makes a person deportable, see INA § 237(a)(2)(A)(i), as do two or more CIMTs at any time. See INA § 237(a)(2)(A)(ii).  An advocate also has to be aware of the impact of a criminal conviction on a lawful permanent resident who wants to travel outside the United States.  If a lawful permanent resident with one or more CIMTs on her record travels outside the United States, upon return she may be considered an applicant for admission under INA § 101(a)(13), and may be subject to mandatory detention under INA § 236(c).  

False Testimony

Giving false testimony with the intent of obtaining an immigration benefit precludes a finding of GMC even if the information provided in the false testimony is not material. “Testimony” must be oral and must have been made under oath.  False statements in writing, such as false information provided in an application or fraudulent documents submitted with an application do not constitute “false testimony” for the purposes of this basis for denying GMC.  Note however, that failure to truthfully answer the questions on the Form N-400 when combined with the fact that an applicant is usually asked to reaffirm his or her answers under oath during the naturalization interview can constitute false testimony.  

Providing a false written statements and/or fraudulent documents can result in a finding of a lack of GMC under the catchall provisions.  For example, an individual provides a forged document to the government in conjunction with application for naturalization. Although the document does not meet the requirements for “false testimony,” the fact of having submitted a forged document to the government could qualify as an “unlawful act” because it would be a violation of 18 USC 1503 and/or 18 USC 1519, among others. A similar outcome could result from the submission of a false affidavit or declaration made under penalty of perjury, which could qualify as an “unlawful act” as a violation of 18 USC 1623.  For an in-depth and engaging discussion of how statements, both written and oral, can result in the inability to show GMC, see Etape v. Napolitano, 664 F.Supp.2d 498 (D. MD 2009). 

Be aware that not all incidents of false testimony need be fatal to a finding of GMC. Where an individual gives false testimony under oath for reasons other than obtaining an immigration benefit, such statements may not undermine a showing of GMC. False statements or misrepresentations made because of “faulty memory, misinterpretation of a question, or innocent mistake,” United States v. Hovsepian, 422 F.3d 883, 887 (9th Cir. 2005), or as a result of “embarrassment, fear, or a desire for privacy,” Kungys v. United States, 485 U.S. 759 (1988), should not preclude a showing of GMC.  See also, Lawson, 795 F.Supp.2d at 294-295. False testimony raises another crucial issue for naturalization, separate from GMC. In a naturalization case, aside from showing GMC, an applicant must also demonstrate that he was lawfully admitted to the United States for permanent residence under INA 318.  Any fraud, misrepresentation, or material omission in the individual’s adjustment of status or immigrant visa process will not only prevent a person from naturalizing, it can also lead to recission of permanent residence under INA 246, if discovered within 5 years of admission, and to removal proceedings at any time. Even after naturalization, an individual can be subject to denaturalization and removal proceedings because of fraud, misrepresentation or material omission. Naturalization may be revoked pursuant to INA 340(a) where it was procured by concealment of a material fact or willful misrepresentation.    

Prostitution

If a person has engaged in prostitution, procured or attempted to procure or to import prostitutes or receives the proceeds of prostitution, or was engaged in any other type of commercialized vice during the statutory period, he will be precluded from showing GMC.  This section does not require a conviction and applies even if the prostitution occurs in a jurisdiction where it is legal.  

Prostitution is defined in the Department of State regulations as “promiscuous sexual intercourse for hire.”  22 CFR § 40.24(b).  However, one incident of prostitution does not constitute “engaging in” prostitution for the purpose of this bar to GMC.  See Matter of T, 6 I&N Dec. 474, 477 (BIA 1955).  Rather, to “ ‘engage in’ means to carry on over a period of time a type of conduct, a pattern of behavior, or form of activity in which sale of the body for carnal intercourse is an integral part . . . .”  Id. Similarly, in Matter of Gonazalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), the BIA agreed with the respondent in that case that “ ‘procure’ does not extend to an act of solicitation of a prostitute on one's own behalf.”  The PM cites to and indicates its agreement with these two cases.  

Keep in mind that prostitution is generally considered a CIMT, see Matter of W, 4 I&N Dec. 401 (Cen. Office 1951), but a single conviction for prostitution will most likey fall within the petty offense exception in INA § 212(a)(2)(A)(ii)(II), and thus will not trigger the CIMT bar to GMC. Obviously, if a client has a prostitution conviction, you should check to make sure the petty offense exception applies.  More than one conviction, however, will bring the person within the CIMT bar to GMC, if during the statutory period, and will also make the person deportable under INA § 237(a)(2)(ii), inadmissible under INA § 212(a)(2)(A)(i), and subject to mandatory detention under INA § 236(c).  Please note that whether simple prostitution is a CIMT is currently being contested before the Board of Immigration Appeals, and AILA has submitted an amicus brief arguing that “the BIA should hold that simple prostitution is not categorically a crime involving moral turpitude for the sex worker or client.”

A victim of human trafficking who had T nonimmigrant status and adjusted to LPR status, would presumably not have to be concerned about the prostitution bar to showing GMC, because his or her involvement with prostitution would likely have been over for at least 8 years, given that in order to qualify for LPR, one has to have been in T status for 3 years, and then to qualify for naturalization, one must be in LPR status for at least 5 years. However, any arrests and/or convictions must be disclosed in the naturalization process, and extenuating circumstances and equities will need to be presented to convince an officer to exercise discretion in the applicant’s favor.  

Habitual Drunkard 

A person who is a “habitual drunkard” during the statutory period cannot show GMC. The PM directs officers to examine various documents that may reveal habitual drunkenness including “divorce decrees, employment records, an arrest records.” PM Ch.5J.  Other factors that officers may look to in determining whether someone is a habitual drunkard include “termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence.”  Id.  

It is not clear how many convictions for or arrests for driving under the influence (DUI) would trigger a finding that someone is a habitual drunkard.  As a general matter, a single conviction for a simple DUI (or driving while intoxicated (DWI), without any aggravating factors, should not result in a negative determination regarding GMC.  See, e.g., Rangel v. Barrows, No. 07 Civ. 279(RAS), 2008 WL 4441974, at *3 (E.D.Tex. Sept. 25, 2008) (“[A] single DWI conviction is insufficient to preclude an applicant from establishing good moral character.”); Ragoonanan v. USCIS, No. 07 Civ. 3461(PAM), 2007 WL 4465208, at *4 (D.Minn. Dec. 18, 2007) (“[A] single DWI conviction, standing alone, does not statutorily bar a naturalization applicant from establishing good moral character when he has been candid about the conviction.”).  Even multiple DUI convictions have not resulted in a negative determination of GMC.  See, e.g., Yaqub v. Gonzales, No. 05 Civ. 170(TSH), 2006 WL 1582440, *5 (S.D.Ohio June 6, 2006) (holding that two DUI convictions do not preclude finding of good moral character, especially where applicant is “forthright”); Puciaty v. Dep't of Justice, 125 F.Supp.2d 1035, 1039 (D.Haw.2000) (holding that two DUI arrests do not preclude finding of good moral character).  

Moreover, simple DUI should not constitute a CIMT or a “crime of violence” aggravated felony. A single DUI conviction without aggravating factors, for example under a statute that does not include any elements relating to intent, such as an intent to harm, would not qualify as a CIMT, nor would multiple convictions for simple DUI. See e.g., Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (finding that multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude) (citing Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996)).  After the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), simple DUI convictions do not generally qualify as “crime of violence” aggravated felonies.  Of course, each statute must examined to ensure the analysis in Leocal applies; in that case the key was the absence of a mental state that would give rise to a finding of moral turpitude.   

However, if a client does have even just one DUI conviction, you have to be prepared to support the argument that a single DUI should not preclude demonstration of GMC, especially in light of the number of cases that go to the BIA and federal courts on this issue and reports coming out of field offices.  

Bars that apply absent “extenuating circumstances”

For the following three conditional bars, which include the catchall of “unlawful acts,” unless the applicant can show extenuating circumstances, he will be found to lack GMC if any of the below occurred during the statutory period.  Keep in mind that with regard to these conditional bars, the applicant is effectively entitled to, and in all circumstances should, show extenuating circumstances.  In general, extenuating circumstances must precede or be contemporaneous with the commission of the offense – equities that arise after the commission of the offense will not be viewed as “extenuating circumstances” by DHS.  See PM, Ch.2E.

• Willful Failure to Support Dependents
• Extramarital Affairs which tended to destroy a marriage
• Unlawful Act

The “unlawful acts” bar provides a broad spectrum of issues.  A person is precluded from showing GMC if, during the statutory period and in the absence of extenuating circumstances, he has committed “unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec.316.10(b)(1) or (2).”  According to the PM, an “ ‘unlawful act’ includes any act that is against the law, illegal or against moral or ethical standards of the community.  The fact that an act is a crime makes any commission thereof an unlawful act.”  PM Ch.5E.  The PM goes over the examples of unlawful voting, false claim to U.S. citizenship for voting, and failure to pay taxes.  Here we review common issues including traffic tickets, domestic disputes, and pending cases. 

In 2006, USCIS confirmed through AILA liaison that a “single traffic ticket that does not result in a disqualifying arrest or conviction under the INA or a non-criminal moving violation, standing alone, will not be the sole basis for a denial of naturalization for lack of the requisite moral character.”  You should review traffic tickets with your client and if they have a series of tickets, ask them to explain, because if they have a large number of tickets, this may lead to a question of whether an adjudicator will see your client as failing to live up to community standards in having a repeated series of unlawful acts.  

Some clients may come to you with a history of domestic disputes.  Be sure to analyze carefully any contact your client may have had with the criminal justice system or family court, relating to any domestic altercations.  Determine whether the client has had arrests, convictions, or protective orders relating to a domestic incident. Domestic violence can result in convictions that count as CIMTs and/or aggravated felonies, and can trigger deportability under INA 237(a)(2)(E).  

Where a client has been arrested but no charges resulted from the arrest, the arrest must still be disclosed on the Form N-400, because failure to disclose an arrest can constitute false testimony in the context of a naturalization interview. The arrest itself will likely trigger an inquiry into the “unlawful act” that led to the arrest, thus the client must be prepared to explain briefly what happened with the arrest in a way that will not lead to an admission that meets the definition of a “conviction” pursuant to INA § 101(a)(48) (Matter of K-, 7 I&N Dec. 594 (BIA 1957) mandates the specific procedure that a government official must follow in order to elicit an admission that may qualify as a conviction).  

If a client has a pending case, even for something minor like a disorderly conduct or a simple DUI with no aggravating factors, it would be best to wait for the case to be resolved before applying for naturalization, or try to get the case resolved before the interview.  (Of course, even minor charges require analysis of the statute at issue to ensure what might at first appear minor is something more complex.) If it is not possible to reach resolution before an interview, when facing a charge that you have determined does not trigger any issues, such as a simple DUI (and there are no other problematic cases in your client’s history), you should be prepared to argue that even if a conviction were to result, your client can still meet his or her burden of establishing good moral character, especially in light of the fact that “we do not require perfection in our new citizens.”  Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961).

Catchall Provision

Finally, even if an individual does not fall within one of the permanent or conditional bars to establishing GMC, INA § 101(f) provides that this does not “preclude a finding that for other reasons such person is or was not of good moral character.”  This is where an adjudicator can exercise discretion in assessing GMC.  

As noted above, adjudicators are required to consider the totality of the circumstances and engage in a balancing of factors in making a determination of GMC.  Thus it is our job as advocates to present as complete a picture of a client as possible where GMC is likely to be an issue.  A careful exploration of a client’s past and present will yield much useful information that can be used to present extenuating circumstances, reformation of character, and to demonstrate that the client has GMC sufficient to merit a grant of citizenship.  Keep in mind that GMC issues overlap with other issues and that if you get a red flag while going over GMC issues, your client might have much more significant problems and face risks including removal and mandatory detention.  Analysis of GMC will help you determine whether the client should or should not risk applying for naturalization, and in managing a client’s expectation as to how much of a fight will be necessary to show GMC, and in what venues (USCIS, AAO, federal court) that fight might need to take place.

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)