APPLICANT FOR ADMISSION - BURDEN OF PROVING CITIZENSHIP
An applicant for admission to the United States as a citizen of the United States has the burden of proving citizenship. Matter of GR, 3 I. & N. Dec. 141 (BIA 1948). Once the applicant establishes that s/he was once a citizen and the government asserts that s/he lost that status, then the government bears the burden of proving expatriation. Ibid. The standard of proof to establish expatriation is less than the clear and convincing evidence test as applied in denaturalization cases, but more than a mere preponderance of evidence. The proof must be strict and exact. Ibid.
IMMIGRATION CONSEQUENCES - NATURALIZATION - GOOD MORAL CHARACTER - ASSAULT AND BATTERY DISMISSAL
Jalloh v. Dept. of Homeland Security, __ F.Supp.2d __ (D.C.Mass. March 11, 2005) (assault and battery with a dangerous weapon conviction held not to be a crime involving moral turpitude for purposes of finding good moral character for naturalization purposes where, examining the underlying facts of the case, it did not appear that the applicant has any evil intent in committing the offense; 8 C.F.R.
DERIVATIVE CITIZENSHIP
Solis-Espinoza v. Gonzales, __ F.3d __ (9th Cir. March 23, 2005) (blood-relation to U.S. citizen not required to obtain derivative citizenship where child was raised by U.S. citizen "mother," married to biological father, since birth).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370625p.pdf
DERIVATIVE CITIZENSHIP
Minasyan v. Gonzales, __ F.3d __ (9th Cir. March 22, 2005) (derivative citizenship shown through naturalization of mother only, based upon 2001 nunc pro tunc court order dissolving marriage and showing that parents were separated and mother was in sole custody since 1993).
http://caselaw.lp.findlaw.com/data2/circs/9th/0273556p.pdf
IMMIGRATION STATUS - UNITED STATES CITIZENSHIP - DERIVATIVE CITIZENSHIP - CUSTODY OF CHILD
Bagot v. Ashcroft, 398 F.3d 252 (3d Cir. Feb. 11, 2005) (where legal custody of a child has not been determined by decree or statute, the parent having actual uncontested custody is to be regarded as having "legal custody" of the person concerned for purpose of determining that persons status under 8 U.S.C. section 1432(a) as to a claim of derivative United States citizenship).
IMM CON - NATURALIZATION - DENATURALIZATION - GOOD MORAL CHARACTER
United States v. Jean-Baptiste, ___ F.3d ___, 2005 WL 15059 (11th Cir. Jan. 4, 2005) (naturalized citizen subject to denaturalization, for lack of good moral character during required period, where he committed drug offense period prior to taking oath of allegiance, but was not indicted, arrested and convicted until after naturalization).
http://caselaw.lp.findlaw.com/data2/circs/11th/0410144p.pdf
RELIEF - 212(c) - LEGALIZATION - LPR THROUGH AMNESTY WHO COMMITTED CRIME WHILE STILL A TEMPORARY RESIDENT MAY STILL BE ABLE TO APPLY FOR 212(c) RELIEF IN REMOVAL PROCEEDINGS
While a noncitizen must be a lawful permanent resident to obtain a waiver under INA 212(c), and LPR status obtained through fraud is insufficient, it is possible to argue that a noncitizen who obtained LPR status though amnesty legalization, even though s/he was not technically qualified because of a criminal offense committed while s/he was a temporary resident, should still be considered an LPR for 212(c) purposes, since the adjustment was automatic (and therefore no fraud could have occurred), and the failure of the INS to rescind the temporary status prior to adjustment bars the INS from
IMMIGRATION CONSEQUENCES - LEGALIZATION - SPECIAL AGRICULTURAL WORKER - COURT OF APPEALS JURISDICTION TO REVIEW DENIAL OF SAW LEGALIZATION APPLICATION
Perez-Martin v. Ashcroft, ___ F.3d ___, 2005 WL 74093 (9th Cir. Jan. 12, 2005) (federal courts have jurisdiction to review decisions of the Legalization Appeals Unit ("LAU") denying applications for temporary resident status as a Special Agricultural Worker ("SAW"), under 8 U.S.C. 1160, where noncitizen claims that the LAU erred substantively in denying his application; Immigration Judge and Board of Immigration Appeals lack jurisdiction to review LAU decisions).
http://caselaw.lp.findlaw.com/data2/circs/9th/0370923p.pdf
RELIEF - NACARA
Centeno v. US Attorney Gen., __ F.3d __ (11th Cir. Feb. 17, 2006) (under NACARA 202(f), no jurisdiction exists to review dismissal of NACARA relief, even on an issue of statutory eligibility).
http://caselaw.lp.findlaw.com/data2/circs/11th/0513003p.pdf
RELIEF - NACARA CANCELLATION OF REMOVAL
Reyes-Morales v. Ashcroft, ___ F.3d ___ (8th Cir. Jan. 31, 2006) (since one of two convictions was not a crime of moral turpitude, and the other qualified for the petty offense exception to inadmissibility, respondent was not inadmissible for crimes under INA 212(a)(2), 8 U.S.C. 1182(a)(2), and therefore not disqualified from eligibility for NACARA special cancellation of removal under NACARA 203), citing Cuadra v. Gonzales, 417 F.3d 947, 949 (8th Cir. 2005).
http://caselaw.lp.findlaw.com/data2/circs/8th/051008p.pdf
