by Cora-Ann V. Pestaina
We’ve pretty much gotten used to (but not accepted!) the vast inconsistencies that exist in degree-equivalency requirements with regard to filing an H-1B, a PERM or an I-140. We’ve been forced to cope with (though we will never understand!) the fact that the degree-equivalency regulations that govern EB-2 and EB-3 professionals are inconsistent with the degree-equivalency regulations that govern H-1B specialty occupations and that USCIS degree-equivalency regulations and the DOL’s SVP scheme applied to labor certifications widely differ. We’ve come to understand how vital it is that we map out the entire green card process prior to filing a PERM application and that we anticipate every potential pitfall and make early strategic decisions to prevent them. Yet, despite all our hard-earned knowledge and efforts, most of us will, at some point, be forced to deal with an unanticipated snag on an equivalency issue especially when the government changes its interpretation on an particular foreign degree.
Ronald Y. Wada, who many of us turn to for guidance through the frustratingly obscure law of degree-equivalency, has written a new article, The Nth Degree – Issues and Case Studies in Degree Equivalency: Crossing the Borderland Between DOL and USCIS Requirements, 15 Bender’s Immigr. Bull. 863 (June 15, 2010). The article addresses the differences between the reviewing practices of the DOL and USCIS. While we’ve always focused on degree-equivalency requirements, the article highlights a different issue – experience.
The PERM program established a “substantially comparable” standard when considering whether prior experience gained on-the-job with the same employer may be used to qualify a foreign national for the job offered. Specifically, under the PERM regulations, a sponsoring employer is permitted to consider experience gained with that employer in instances where it establishes that the position in which the alien gained the qualifying experience is not “substantially comparable” to the job for which labor certification is being sought. Substantially comparable is defined by the regulations as a job or position requiring performance of the same job duties more than 50 percent of the time. 20 C.F.R. § 656.17(i)(5)(ii). Then, there is the USCIS rule, established in Matter of Wing’s Tea House, 16 I&N Dec. 158 (Acting Reg’l Comm’r 1977), a precedent decision, which holds simply that the foreign national must possess the qualifications specified on the labor certification as of the priority date.
In his article, Mr. Wada writes, “Since the AAO has stated in numerous nonprecedent decisions (and federal courts have affirmed) that USCIS has the authority to determine whether the beneficiary meets the job requirements shown on the PERM application, once the labor certification is approved by the DOL the rule regarding what experience can be counted shifts to the USCIS rule.” This circumstance could provide the escape from the snare of a badly designed PERM, provide another option when the foreign national presents new information at the I-140 phase (“Sorry, I guess I can’t get all those experience letters after all!”) or even help in instances where the USCIS attempts to revoke a previously approved I-140.
The Wada article presents the case where a PERM was designed with a Master’s degree requirement and was certified. At the I-140 phase, the USCIS refuses to accept the foreign national’s Master’s degree deeming his credentials equivalent to only a U.S. Bachelor’s degree. A bachelor's degree plus five years of post-baccalaureate progressive experience equates to a Master's degree. If the foreign national is able to demonstrate five years of progressive, post-degree work experience prior to the priority date of the PERM application, then under the USCIS policy in Matter of Wing’s Tea House, the foreign national may yet qualify for the offered position and for EB-2. Importantly, the foreign national may even utilize experience gained on the job with the sponsoring employer – something he could not do during the labor certification phase especially if the two positions with the same employer were not more than 50% different! He may combine experience gained with a previous employer and experience gained with the sponsoring employer to arrive at the requisite 5 years of post-degree experience. It is only necessary that the foreign national meet the job requirements prior to the priority date, which is established when the labor certification is filed. USCIS does not set forth any “substantially comparable” standard à la the DOL.
Matter of Wing’s Tea House could also work in instances where, whether it’s an EB-2 or an EB-3 I-140, the foreign national belatedly discovers that her previous employer still harbors ill-will toward her and thus refuses to issue her an experience letter. If the foreign national is left short 1 year of experience and she had been employed with the sponsoring employer for at least 1 year before the labor certification was filed on her behalf, under Matter of Wing’s Tea House, the foreign national could combine experience gained with the sponsoring employer and her previous experience to qualify her for the offered position despite the fact that her on-the-job experience would not have qualified her for the offered position at the labor certification phase due to the DOL’s “substantially comparable” rule.
But will it actually work? Having said all that, we should bear in mind that the USCIS is afforded grounds in 20 C.F.R. §656.30(d) to invalidate a labor certification based on a finding of fraud or willful misrepresentation of a material fact involving the labor certification application. While the scenarios outlined above would not compel such a finding, is there a chance that the USCIS could request that the DOL revoke the labor certification? Under 20 C.F.R. §656.32(a) the DOL may revoke an approved labor certification, based on a finding that the certification was not justified. If the foreign national is found not to possess the degree or the experience listed on the PERM, which is not being used consistently at the time of the I-140, could it be held that the certification was not justified? It is interesting food for thought. However, Matter of Wing’s Tea House indeed presents an innovative path that could possibly be used to save an I-140 in trouble.
June 18, 2010
DIFFERENT STROKES: USING DIFFERENT EXPERIENCE REQUIREMENTS ON A LABOR CERTIFICATION AND I-140 PETITION
June 8, 2010
THE ONLY TRUE TEST OF LEADERSHIP: PRESIDENTIAL INITIATIVE AND IMMIGRATION REFORM
Facing the setting sun out beyond the vast confines of the Los Angeles coliseum, John Kennedy accepted the Democratic nomination for President in 1960 by proclaiming that “the only valid test of leadership is the ability to lead and lead vigorously.” Doubtless thinking how to respond to the challenges of his own time, President Kennedy has unwittingly showed the way to meaningful immigration reform for our era. While we fondly hope and fervently pray that the Congress will enact comprehensive immigration reform, we must not stand silent while waiting for Godot. There is enormous remedial potential in the current corpus of immigration law that can be realized through the dedicated application of executive initiative if the vision and will to do exists. It was for this purpose and with this intent that we wrote at length in The Tyranny of Priority Dates in BIB Daily, http://scr.bi/i0Lqkz. While our ideas there were audaciously incremental, we did not cite to past examples of innovative executive leadership that expressed profound policy changes through regulatory revision. It is our great good fortune to remedy this troubling omission with a large helping hand from Solicitor General Elena Kagan recently nominated by President Obama to replace retiring Justice John Paul Stevens on the United States Supreme Court. What a relief!
In 2001, then Harvard Law School Dean Kagan wrote her most widely cited foray into legal scholarship Presidential Administration in 114 Harvard Law Review 2245, http://www.harvardlawreview.org/issues/114/june01/Article_7038.php We freely admit that Dean Kagan does not mention immigration even once in over a hundred pages. Most of the article analyzes the influence wielded by various Presidents over the federal regulatory process, presenting at length legal arguments for and against such a sweeping exercise of authority. However, deep within the bowels of this robust exegesis, one finds a golden nugget that we hope to polish for our own very different purposes. On pages 2281-2282, we take a deep breath and read the following:
President Clinton treated the sphere of regulation as his own and in doing so
made it his own, in a way no other modern President had done. Clinton came to
view administration as perhaps the single most critical-in part because the
single most available- vehicle to achieve his domestic policy goals ( emphasis
added).
Dean Kagan offers several examples: a rule to curb underage smoking by restricting the marketing and advertising of tobacco products to children; a rule that allowed the states to offer paid family leave to new parents through the mechanism of unemployment insurance and regular issuance of executive memoranda that directed agency heads to take specified actions within the scope of those powers previously delegated to them by the Congress; making public lands off limits from private development as national monuments; prohibition of discrimination on the basis of sexual orientation; barring federal contracts with companies that used strikebreakers or child labor; mandating a minimum level of employment by federal agencies of welfare recipients and those with physical disabilities; compelling the adoption of workplace rules on expanded religious expression and making sure that regulatory agencies honored strict environmental codes. Doubtless, there are many others. See Presidential Administration at 2292. As it turns out, Dean Kagan reminds us that other Presidents had also changed the nation through the stroke of a pen:
Presidents, of course, discovered long ago that they could use executive orders
and similar vehicles(for example, proclamations) to take various unilateral
actions, sometimes of considerable importance. Consider, by no means as typical
examples but as historical highlights., Thomas Jefferson’s Louisiana Purchase,
Theodore Roosevelt’s reservation of public lands for a system of national parks,
Harry Truman’s desegregation of the armed forces, Lyndon Johnson’s
requirement that federal contractors adopt affirmative action policies, and…
initiation of OMB regulatory review. See Presidential Administration at
2291.
There is no reason why Presidents cannot make immigration policy in precisely the same way. Doing so would be yet another reminder that the most long-lasting impact of Immigration Reform and Control Act of 1986 was to bring the whole issue of immigration out of the shadows and into the mainstream of national political conversation and public debate. Immigration as an issue has grown up; what Presidents have done in so many other aspects of governance can now be tried within the confines of the Immigration and Nationality Act. So, for example, until Congress acts to overthrow the tyranny of priority dates and reverse the implosion of the green card category system by revising INA § 245(a)(3) and removing the arbitrary and capricious burden of a current priority date as a condition precedent to application for adjustment of status, the President can give hope to untold thousands, especially from India and China, but also those with no graduate degree, through the simple stroke of a pen. How? By taking a new long look at what “immediate availability” of an immigrant visa number can or should mean, which is one of the central ideas in The Tyranny of Priority Dates.
Would it not be advantageous if those caught in the crushing EB-2 or EB-3 backlogs could file an adjustment of status application, Form I-485, based on a broader definition of visa availability? It would only be more fair to allow someone to file an I-485 application sooner than many years later if all the conditions towards the green card have been fulfilled, such as labor certification and approval of the Form I-140 immigrant visa petition. Upon filing of an I-485 application, one can enjoy the benefits of occupational mobility or “portability” under INA § 204(j) and children who are turning 21 can gain the protection of the Child Status Protection Act if their age is frozen below 21. Moreover, the applicant, including derivative family members, can also obtain employment authorization, which they otherwise would not be able to get on an H-4 dependent visa.
Unfortunately, INA § 245(a)(3) only allows the filing of an I-485 application when the visa is immediately available to the applicant, and this would need a Congressional fix. We know that Congress either NEVER makes any sensible fix or takes a very long time to do so. So, why not find a way for the immigration agency, USCIS, to allow for an I-485 filing before the priority date becomes current, and still be faithful to § 245(a)(3)?
The only regulation that defines visa availability is 8 C.F.R. § 245(g)(1), which provides:
An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current). An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
Under 8 C.F.R. § 245.1(g)(1), why must visa availability be based solely on whether one has a priority date on the waiting list which is earlier shown in the Visa Bulletin? Why can’t “immediately available” be re-defined based on a qualifying or provisional date? We are all so accustomed to paying obeisance to the holy grail of “priority date” that we understandably overlook the fact that this all-important gatekeeper is nowhere defined. Given the collapse of the priority date system, all of us must get used to thinking of it more as a journey than a concrete point in time. The adjustment application would only be approved when the provisional date becomes current, but the new definition of immediately available visa can encompass a continuum: a provisional date that leads to a final date, which is only when the foreign national can be granted Legal Permanent Resident status but the provisional date will still allow a filing as both provisional and final dates will fall under the new regulatory definition of immediately available. During this period, the I-485 application is properly filed under INA 245(a)(3) through the new definition of immediately available through the qualifying or provisional date.
In The Tyranny of Priority Dates we propose the following amendments to 8 C.F.R. § 245(g)(1), shown here in italics, that would expand the definition of visa availability:
An alien is ineligible for the benefits of section 245 of the Act unless an immigrant visa is immediately available to him or her at the time the application is filed. If the applicant is a preference alien, the current Department of State Bureau of Consular Affairs Visa Bulletin will be consulted to determine whether an immigrant visa is immediately available. An immigrant visa is considered available for accepting and processing the application Form I-485 [if] the preference category applicant has a priority date on the waiting list which is earlier than the date shown in the Bulletin (or the Bulletin shows that numbers for visa applicants in his or her category are current) (“current priority date”). An immigrant visa is also considered available for provisional submission of the application Form I-485 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Final adjudication only occurs when there is a current priority date. An immigrant visa is also considered immediately available if the applicant establishes eligibility for the benefits of Public Law 101-238. Information concerning the immediate availability of an immigrant visa may be obtained at any Service office.
Once 8 C.F.R. § 245.1(g)(1) is amended to allow adjustment applications to be filed under INA § 245(a)(3), the authors propose similar amendments in the Department of State’s Foreign Affairs Manual to even the playing field for beneficiaries of approved I-140 and I-130 petitions who are outside the U.S. so as not to give those here who are eligible for adjustment of status an unfair advantage. Since the visa will not be valid when issued in the absence of a current priority date, it will be necessary for USCIS to parole such visa applicants in to the United States. Since parole is not considered a legal admission, they will not be eligible for adjustment of status but will have to depart the United States and use the now-valid visa as a travel document to return when visa availability subsequently presents itself. The authors suggest the insertion of the following sentence, shown here in bold italics and deletion of an other sentence, in 9 Foreign Affairs Manual (FAM) 42.55 PN 1.1, as follows:
9 FAM 42.55 PN1.1 Qualifying Dates
“Qualifying dates” are established by the Department to ensure that applicants will not be officially informed of requisite supporting documentation requirements prematurely, i.e., prior to the time that the availability of a visa number within a reasonable period can be foreseen. Therefore, post or National Visa Center (NVC) will not officially and proactively notify applicants of additional processing requirements unless the qualifying date set by the Department (CA/VO/F/I) encompasses the alien’s priority date. Otherwise, it is likely that some documents would be out-of date by the time a visa number is available and delay in final action would result. An immigrant visa is also considered available for provisional submission of the immigrant visa application on Form DS 230 based on a provisional priority date without reference to current priority date. No provisional submission can be undertaken absent prior approval of the visa petition and only if visas in the preference category have not been exhausted in the fiscal year. Issuance of the immigrant visa for the appropriate category only occurs when there is a current priority date. Delete this sentence: [However, should an applicant or agent request information concerning additional processing requirements, this information may be provided at any time with a warning that some documents may expire if obtained too early in the process.]
If Congress wanted to ratify what the USCIS had done, it could certainly do so after the fact. Everything that we now consider to be the adjustment of status process could take place before the priority date becomes current. Similarly, those overseas, can also be paroled into the United States prior to a current priority date. Nothing could be simpler. The reason to seek Congressional modification of INA § 245(a) is not because it is the only way forward but because, by enshrining such a procedural benefit in the INA itself, it will be a much more secure right, one not subject to administrative whim or unilateral repeal. What we propose is not out of the ordinary and without precedent. For instance, the USCIS informally allows spouses of military personnel who would otherwise be unable to adjust under INA § 245(a) if they were neither “inspected and admitted or paroled” to apply for “parole in place.” This administrative solution, where a non-citizen is fictitiously paroled, and thus rendered eligible for adjustment as an immediate relative of a US citizen under § 245, allows our troops to concentrate in the battlefield without being distracted about whether their spouses can or cannot remain in the US. Moreover, as suggested in The Tyranny of Priority Dates, there is nothing to prevent the administration from granting similar parole benefits to undocumented non-citizens in the United States, along with employment authorization, who are waiting for their priority dates to become current or who meet certain sympathetic criteria such as DREAM children. The President can achieve something close to Comprehensive Immigration Reform without going through Congress and without violating the Separation of Powers doctrine, http://www.cyrusmehta.com/News.aspx?SubIdx=ocyrus20105711018&Month=&From=Menu&Page=2&Year=All.
Given the obvious and not insignificant benefits of broad administrative solutions proposed in The Tyranny of Priority Dates, any transitional angst is surely worth the effort. If, as Antonio reminds Sebastian in Act II of Shakespeare’s The Tempest, “what’s past is prologue,” the rich history of executive initiative as a mechanism to achieve meaningful change that Solicitor General Kagan has so eloquently brought to our attention can serve as milestones along the march to comprehensive immigration reform so that, when Congress does decide to follow, they will know where to go and how to get there.
June 2, 2010
INDIAN GOVERNMENT BACKS DOWN OVER PASSPORT SURRENDER RULE, BUT WILL THE NEW GUIDANCE LEAD TO FURTHER CONFUSION?
"In supersession of the rules regarding Surrender/Renunciation Certificate the Government of India have decided as follows:-
Persons of Indian Origin (PIOs) who have already acquired foreign citizenship voluntarily till May 31, 2010 shall cease to be Indian citizens upon their acquiring foreign citizenship. However, such persons are required to surrender their Indian passports, whether valid or expired, to the Indian Consulate so that the passport is not misused. Such persons are not required to pay any fee under the Citizenship Act. They will have to pay US$ 20/- for Surrender/Cancellation of the passports.
Those Indian citizens, who intend to acquire foreign citizenship on or after 1st June 2010 will have to submit a declaration of renunciation of their Indian citizenship with payment of US$ 175/- as per fee structure under Rule 23 of the Citizenship Rules, 2009.
The issue of refund of any part of renunciation fee already paid by applicants till 31 May 2010, if applicable, has been taken up with the Government of India. The decision when received will be uniformly applied to those concerned and the information will be put on our website when available. Meanwhile no email/phone queries will be entertained. "
(a) under which provisions of law, the applicant is an Indian citizen; and
(b) the circumstances in which the applicant intends to acquire foreign citizenship.
(2) On receipt of the declaration of renunciation of citizenship of India under sub-rule (1), an acknowledgement in Form XXIII shall be issued by an officer designated under rule 38.
(3) The declaration shall be registered in the Ministry of Home Affairs, Government of India.
(4) The Central Government in the Ministry of Home Affairs shall maintain a register in Form XXIV containing the names of persons whose declaration of renunciation of citizenship are registered under this rule.
May 28, 2010
NEW INDIAN GOVERNMENT RULE REQUIRING RENUNCIATION OF INDIAN CITIZENSHIP AND SURRENDER OF INDIAN PASSPORTS OUTRAGES OVERSEAS INDIANS
By Cyrus D. Mehta
The new rules requiring overseas Indians to renounce Indian citizenship and surrender the Indian passport after they have taken up the citizenship of another country misinterpret the provisions of the Indian Citizenship Act, 1955. The guidance, including Frequently Asked Questions, can be found on the website of the Indian Consulate in New York, http://www.indiacgny.org/php/showHighLightDet.php?h_id=138&key.
According to the guidance, the Indian passport must be surrendered within 90 days of US naturalization even if the US passport is obtained later. A fee of $175 has been imposed to surrender the Indian passport. Additional monetary penalties are imposed on those who failed to surrender the passport within three years of acquiring US citizenship or for travelling on the Indian passport or applying for its reissuance after US citizenship. The new rules are especially harsh on those who may have obtained US citizenship many decades ago and who may have lost their Indian passports. An applicant who has lost, damaged or surrendered his or her Indian passport to a foreign government must furnish certified copies of the following documents:
1. Details of last held Indian passport (Passport No., Date of Issue & Place of issue). The onus of providing details rest on the applicant.
2. Official documents submitted to authorities of new country at the time of obtaining citizenship/naturalization & documents used for entry such as US Form I -130.
3. Notarized letter explaining reasons for loss.
4. Police report.
Failure to comply with the surrender policy will likely deprive a person of Indian origin to obtain an Indian visa, an OCI/PIO card or other consular services.
The provision for termination of Indian citizenship is separate and distinct from the provision for making a declaration of renunciation. While renunciation of citizenship is covered in Section 8 of the Citizenship Act 1955 and has to be applied on a prescribed form by a citizen of India, automatic termination of citizenship, which occurs when one takes up the citizenship of another country, is covered under Section 9 and requires no formal application to the Indian government.
It is clear that a person cannot use the Indian passport to travel when he or she becomes a US citizen as Indian citizenship has automatically terminated under Section 9. There may also probably be a basis for establishing rules requiring surrender of the passport that has been rendered invalid under Section 9, although it is unfair to penalize a person for failing to surrender the passport when there was no established procedure to do so prior to the recent guidance. However, the Surrender Form, http://www.indiacgny.org/UserFiles/Renunciation%20Form(2).pdf, requiring renunciation of Indian citizenship, does not make sense. One cannot renounce citizenship when it has ceased to exist. Under Section 9, Indian citizenship was automatically terminated when the person took up the citizenship of another country. On the other hand, Section 8 provides for a citizen of India to renounce Indian citizenship, and it should be noted that the words “who is also a citizen or national of another country” were deleted from Section 8 by Act 6 of 2004. Thus, a person who is no longer a citizen of India cannot renounce Indian citizenship.
Rule 13 of the Passport Rules, 1980 states that “[a] person holding a passport or travel document shall not be entitled to another passport or travel document unless he surrenders to the passport authority the passport or travel document already held by him.” Rule 13 further states, “Provided that separate passports or travel documents may be issued to the same person in respect of different countries if it is necessary so to do for facilitating his visits to such countries.” Section 12 (3) of the Passport Act, 1967 states that “[w]hoever contravenes any condition of a passport or travel document or any provision of this Act or any rule made thereunder for which no punishment is provided elsewhere shall be punishable with imprisonment for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.”
This rule, which the Indian government appears to be relying on, is ambiguous and appears to apply more readily to one who holds a valid Indian passport and is applying for another, rather than one who ceases to have a valid Indian passport by operation of Section 9 of the Citizenship Act and has been issued a US passport. In any event, the Indian consulates in the US never had a formal procedure for surrendering a passport until the recent guidance. Even when a person applied for the OCI card and handed in the Indian passport with the intention to surrender the document, the Indian Consulate merely cancelled it. We are now told that such a cancellation will not be considered a valid surrender of the Indian passport, and a person who in good faith handed in the Indian passport earlier will have to pay additional penalties above the $175 basic fee for surrender.
It is important that the Indian government continues to maintain goodwill with the overseas Indian community. The new rules merely antagonize the community and there is absolutely no need for this. There surely is a better way to implement a surrender policy of invalid Indian passports on a prospective basis, without also requiring renunciation, rather than the clumsy and arbitrary way it has been handled so far. The Global Organization of People of Indian Origin has launched a campaign requesting the government to reconsider the retroactive enforcement of the new rule, http://www.gopio.net/news_052510.htm.
(The author thanks Ramya Mahesh, associate at Little & Co., Advocates and Solicitors, Mumbai, India, for her invaluable assistance)
May 26, 2010
AN UNCERTAIN TRUMPET: TERRORISM AND LOSS OF AMERICAN CITIZENSHIP
By Gary Endelman and Cyrus D. Mehta
After the foiling of the plot of would be Times Square bomber in New York on May 1, 2010, Faisal Shahzad, and the terrorism inspired through the preachings of Anwar al-Awlaki, an American citizen operating out of Yemen, there have been calls to strip Americans of their citizenship if suspected to have ties with terrorist organizations. The urge to strip citizenship is nothing new. Even shortly after the founding of the nation, there was concern about the status of those who had remained loyal to the British during the Revolution. And until the latter part of the 20th century, it was not uncommon for the State Department to strip Americans of their citizenship if they voted in a foreign election or took up the citizenship of a foreign country.
Shortly following the heels of the Times Square incident in New York, Senators Lieberman and Brown have proposed a bill, the Terrorist Expatriation Act, which would expand Section 349 of the Immigration and Nationality Act. Section 349 provides for loss of US nationality or citizenship for various expatriating acts. Under Section 349, a person can lose citizenship, among other things, for obtaining naturalization in a foreign state, entering the armed forces of a foreign state as an officer or if such armed forces are in hostilities against the United States, obtaining employment in the government of a foreign state after acquiring the nationality of that foreign state or making a formal renunciation of nationality before a consular officer. Section 349 also provides for loss of nationality if one is convicted of treason or related subversive acts. While Section 349 provides very broad grounds for expatriation, it requires that the individual voluntary perform these expatriating acts “with the intention of relinquishing United States nationality.”
Senators Liberman and Brown, in their proposed Terrorist Expatriation Act, http://lieberman.senate.gov/assets/pdf/TEA_full.pdf, add expatriating acts such as providing material support or resources to a foreign terrorist organization (as designated by the State Department) or engaging in purposefully and materially supporting hostilities against the United States or purposefully and materially engaging in supporting hostilities against any country that is directly engaged with the United States in hostilities engaged by the United States. Since the Senators proposed their bill, most from the left and right of the political spectrum have been critical, including no less than conservative commentator David Frum, http://tiny.cc/g29bn
Why should the Lieberman-Brown proposal trouble all of us even though polls show that it is supported by a majority of Americans? Some will argue that it adds an additional expatriating ground to a statute that has been on the books for a very long time. Moreover, this statute, Section 349, still requires that the government bears the burden through a preponderance of evidence that the expatriating act was committed with the intention of relinquishing United States nationality. So what’s the fuss about especially when the expansion of Section 349 is supposed to protect us against terrorists? Supporters of such proposals must constantly be reminded of a seminal Supreme Court decision, Afroyim v. Rusk, 387 U.S. 253 (1967), which involved a challenge by an American who had been expatriated because he voted in a foreign election. Justice Black who wrote the majority opinion held that Congress does not have any power, express or implied, to take away an American citizen’s citizenship without his assent. The majority essentially rested on the expansive protection in the Fourteenth Amendment:
We hold that Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color or race. Our holding does no more than to give this citizen that which is his own, a constitutional right to remain in a free country unless he voluntarily relinquishes that citizenship.
Id. at 268. Indeed, prior to Afroyim, and a subsequent decision, Vance v. Terrazas, 444 U.S. 253 (1980), Section 349 was broader, and it was only in 1986 that Congress amended the statute to include a demonstration by the government that the expatriating acts within were performed “with the intention of relinquishing United States nationality.” However, notwithstanding this limitation, Section 349 is still broad because it does not require any administrative or judicial action. An American citizen who applies for a renewal of his or her passport overseas at a consulate can be prevented from doing so if suspected of performing one of the enumerated expatriating acts under Section 349. Thus, if Senator Lieberman’s proposal took effect, one suspected of providing material support or resources to a foreign terrorist organization would be stripped of United States citizenship through a finding by a junior consular official. This might be the case even if a doctor gave emergency medical assistance to a dying terrorist or if a grandmother unwittingly provided food to a group of people who belonged to a terrorist organization after they knocked on her door. Indeed, someone like Dr. Samuel Mudd who treated John Wikes Booth’s broken leg after the assassination of President Lincoln and who was ultimately pardoned, http://en.wikipedia.org/wiki/Samuel_Mudd, could potentially lose citizenship if he were to treat a terrorist today. Moreover, it could also snare a lawyer who provided legal advice to a terrorist organization on how to promote its political agenda through peaceful means. Of course, the person stripped of citizenship could still seek administrative review and have access to the courts, but the Lieberman-Brown proposals would give broad leeway to the government official to determine that there has been a loss of citizenship first before any recourse can be taken. Another constitutional objection, actually two of them , to the Lieberman-Brown proposal are : (1) one can lose citizenship status for taking action to the detriment not of the United States itself but to an ally of the United States. We know of no other instance where United States citizenship can be lost by action taken against another country;(2) the well-settled doctrine of void for vagueness. What is meant by "hostilities"? A "conflict subject to the laws of war" the concept of "conflict" is nowhere defined; which "laws of war" would apply and are there "conflicts" that would NOT be so subject?
We do not know how it would be possible for the United States government to prove that anyone provided material support to alleged terrorist activities with the intention of giving up United States citizenship as opposed to viewing such action as a protest against specific policies of the United States government. This is not, using the gloss to Afroyim that Justice White provided in Terrazas, a "fair inference from proven conduct" but goes way beyond it. It eliminates via the backdoor the intent requirement from INA 349 expatriation test and seeks to return the law of expatriation to where it was before Afroyim so that the decisions on loss of citizenship become an issue to be decided not by the intent of the citizen but by the government in its conduct of US foreign policy, a return, in other words, to proposition rightly criticized by Chief Justice Warren in Trop v. Dulles, 356 U.S. 86, namely that "citizenship is not a license that expires upon misbehavior." Interestingly, the high water mark of the idea that loss of citizenship can be decided by the government without reference to the intent of the citizenship as an aspect of foreign policy, Perez v.Brownell, 356 U.S. 44, involved voting in a Mexican election - the very act that the Court in Afroyim found insufficient, which in that case involved voting in an Israeli election. What the Liebermann-Brown proposal does is to equate an expression of political opinion through material support of a terrorist organization, even if considered criminal conduct, into an intent to expatriate.
We further remind the supporters of the Lieberman-Brown bill that, when the loss of citizenship is at issue, "a statute which attaches such a penalty to certain conduct should be construed strictly to avoid an imposition which goes beyond the manifest intent of Congress." In re Rego, 289 F.2d 174, 176 (3rd Cir. 1966) (citing United States v. Minker, 350 US 179 (1956)). The involuntary deprivation of citizenship deprives one of "all that makes life worth living." Ng Fung Ho. v. White, 259 US 276, 284 (1922). When arising under, and protected by, the Fourteenth Amendment, US citizenship is a condition or status "which a citizen keeps unless he voluntarily relinquishes it." Afroyim v. Rusk, 387 US 253, 262 (1967). The reason for such a rule derives from the fundamental truth that, as Mr.Justice Black so eloquently articulated it, "in our country the people are sovereign and the Government cannot sever its relationship to the people by taking away their citizenship." Id. at 257, See also Nishikawa v. Dulles, 356 US 129, 138-139 (1958) (Black, J.). The whole point of Vance v. Terrazas is that, without more, the voluntary performance of a statutorily-designating expatriating act is not sufficient to cause or justify an involuntary loss of US citizenship. For Danny Terrazas to lose his US citizenship it was not enough for him to swear allegiance to Mexico to avoid conscription; Uncle Sam also had to prove that he "also intended to relinquish his citizenship." Vance v. Terrazas, 444 US 252, 261 (1980) .While it is undeniably true, as made clear in INS Interpretation 349.4(b) that service in the armed forces of a foreign state then engaged in hostilities against the USA is "highly persuasive evidence of the intention to relinquish United States citizenship required for expatriation under the Afroyim principle," how much less probative of such an intent is non-combatant support in the absence of any declaration of war and outside the context of formal military combatants.
None of the expatriating acts in the Liberman-Brown proposal first require a conviction. Indeed, a somewhat parallel expatriating provision, Section 349(a)(7), requires a conviction under 18 USC Sections 2383, 2384 and 2385 relating to acts of treason or attempting to overthrow the United States government by force or for bearing arms against the United States. And even after the conviction, the government must demonstrate that there was an intention on the part of the perpetrator of such subversive acts to relinquish United States nationality. There is no reported case of a person convicted under any of the above provisions being found to have expatriated himself or herself. Even a bill proposed in the Israeli Knesset will strip a person of Israeli citizenship after being convicted of terrorist activity or espionage on behalf of a terrorist organization although it does not require an intent to relinquish such citizenship, http://tiny.cc/6ii58. The proposed bill of Senators Lieberman and Brown, will make expatriation easier, thus violating the protection of the Fourteenth Amendment, as enunciated in Afroyim and many other Supreme Court decisions, which will only further erode the rights of American citizens. Our constitution protects the citizenship of law abiding and criminal alike. Other countries will also be tempted to pass similar measures to strip persons of citizenship on broad terrorism related grounds in a post 9/11 world, but the sponsors of such potential laws must be reminded that citizenship stripping provisions will not dissuade terrorism, and will instead, ultimately undermine the rights of their own citizens.
Finally, international law also rejects statelessness and there exists a UN Convention on the Reduction of Statelessness, http://www.unhcr.org/refworld/pdfid/3ae6b39620.pdf, which sets forth narrow grounds under which a person can be stripped of citizenship as well as the ability to seek a hearing in case of such an eventuality. When a citizen is stripped of citizenship, it results in statelessness, if he or she does not have another nationality. As the nation state has become the primary vehicle for defining political identity, statelessness has come to mean a reduction to anonymity and a consequent inability to express or protect the personal freedoms basic to political life. It is the ultimate exile. Governments have universally abhorred the possibility of statelessness. Even Chief Justice Warren married this abhorrence with his theory that the Fourteenth Amendment deprived Congress of the power to denationalize in Trop v. Dulles, which was then rejected in several Supreme Court cases but ultimately became the majority view in the Afroyim case. In Justice Warren’s view, denationalization constituted cruel and unusual punishment in violation of the Eight Amendment because it resulted in statelessness.
Citizenship is the most precious right under United States law. What if the Lieberman bill becomes law? What then? These cases demand an attorney’s best effort. Learn the facts, know the law and work hard for your client. Do not necessarily accept the interpretation advanced by the State Department. Always remember the bottom line: citizenship is not lost by ambiguity or inaction. There are few victories you will savor more than preventing or reversing a loss of citizenship determination.
