United States Citizenship, lawfully obtained through birth, derivative citizenship,[316] or naturalization, is a complete bar to deportation and inadmissibility.[317]  See § § 3.3-3.4, infra.  However, failure to raise a claim of citizenship before an immigration judge may result in a loss of opportunity to raise the claim later.[318]  When entering the United States the burden is on the entrant to show citizenship.[319]

An applicant for naturalization as a United States Citizen must have been a person of “Good Moral Character” during the period for which Good Moral Character must be shown immediately preceding the date of the filing of the application and continuing up to the time of admission to citizenship by administration of the oath of allegiance.[320]  “Good Moral Character” itself has no statutory definition.  Instead, the INA defines certain classes of persons who are ineligible to show “Good Moral Character.”  At least one court had held that the underlying facts can be examined to determine whether a criminal offense should be considered a bar to Good Moral Character.[321]  A naturalization applicant shall be found to lack Good Moral Character if s/he has been convicted of an aggravated felony.  This bar is permanent for any aggravated felony conviction occurring after November 29, 1990.  See § 2.14, supra.

 

The immigration authorities can also take into account the applicant’s conduct and acts preceding the statutory period during which the GMC must be shown when deciding whether to exercise their discretion to grant naturalization,[322] but they may not deny the naturalization application solely on the basis of offenses committed before the beginning of the statutory time period for which Good Moral Character must be shown.[323]

 

“An applicant who has been on probation, parole, or received a suspended sentence during all or part of the statutory period is not thereby precluded from establishing good moral character.  However, such probation, parole or suspended sentence may be considered by the INS in determining good moral character.  No application will be approved until after the probation, parole, or suspended sentence has been completed.”[324]  The applicant can apply while on probation or parole, so long as it has ended by the time of the naturalization interview. 

 

Unless the applicant falls within one of the categories below, s/he must show five years Good Moral Character:[325]

 

·        Spouses of U.S. citizens can naturalize after three years lawful permanent residence (upon showing three years Good Moral Character),  if married to the citizen during the entire three years.[326]

 

·        Spouses of U.S. citizens stationed abroad in the employ of the U.S. government and certain other designated organizations may naturalize after showing GMC for a reasonable period of time.[327]

 

·        An applicant with three years total honorable U.S. military service is eligible for naturalization.  No particular period of GMC is required.[328]  Even a deportable applicant can be naturalized if s/he is still in the military.

 

·        Veterans of U.S. armed forces during certain armed conflicts (which include World War II and the Korean, Vietnam, and Gulf Wars), or persons who were in the armed services for three years at any time, and who if separated from the armed forces, were honorably discharged, are permitted to naturalize.[329]  The period of GMC[330] is a “reasonable period of time.”  If the person enlisted within the United States, the person is not even required to be a permanent resident, and a deportable applicant can be naturalized.

 

·        A child born outside the U.S. to at least one U.S. citizen parent may be naturalized.[331]  Good Moral Character is presumed if the child is under 18 years of age.  The child must not be otherwise barred by INA § 313 (subversives), § 314 (deserters), § 315 (claiming exemption from military service), or § 318 (deportees).  Depending on the circumstances, the child also might have inherited U.S. citizenship at birth.  See § 3.4(B), infra.

 

If the noncitizen is in removal proceedings, it will be necessary for the respondent to ask the immigration judge to terminate removal proceedings to allow the person to naturalize.  See N. Tooby, Criminal Defense of Immigrants § 9.10 (2003).  An aggravated felony conviction prior to November 29, 1990 is not a permanent bar to naturalization, and therefore it may be possible to make such a request if the conviction causing removal occurred before that date.  It is difficult to obtain this discretionary relief.  See N. Tooby, Criminal Defense of Immigrants § 9.10 (2003).

 

It may also be necessary to seek review of the administrative denial of the naturalization application in federal district court.[332]  What the district court does depends on how the prayer for relief is framed.  Under the statute, the judge can treat the naturalization application de novo.  Alternatively, the judge can remand with an instruction to adjudicate the petition within a set period of time.  Upon filing, the AUSA will try to get an agreement to remand. Counsel should not agree unless there is in writing an agreement that the judge will supervise the settlement order unless and until it is adjudicated by CIS.

 

Client should make sure the client has a spotless record before filing in district court, or CIS and the AUSA will get entrenched and will look for reasons to deny so as to moot the petition.

 

            Nothing short of participating in a public citizenship ceremony following a lawful application for naturalization will transform a noncitizen into a citizen.  See § 3.5, infra, concerning nationals of the United States.  Canadian citizens, who are American Indians born in Canada, may not be deported on any ground of deportation.  See § 3.6, infra.

 

For more information on applications for naturalization, see N. Tooby, Criminal Defense of Immigrants, Chapter 9 (Naturalization and Crimes) (2003); ABA Com’n on Immigration, Naturalization and Criminal Offenses (Oct. 2005); Immigrant Legal Resource Center, Naturalization: A Guide for Legal Practitioners and Other Community Advocates (2004).[333]

 

[316] A discussion of the requirements for derivative citizenship (generally obtained if both parents naturalized before the child turned 18) may be found at § 3.4(C), infra.

[317] See Rivera v. Ashcroft, 387 F.3d 835 (9th Cir. Oct. 18, 2004) (denial of habeas corpus petition reversed where IJ wrongfully ordered United States citizen removed to Mexico); Murphy v. INS, 54 F.3d 605, 610 (9th Cir. 1995).  As the Supreme Court has long recognized, “[t]o deport one who . . . claims to be a citizen[ ] obviously deprives him of liberty, . . . [and] may result also in loss of both property and life; or of all that makes life worth living.”  Agosto v. INS, 436 U.S. 748, 753 (1978) (quoting Ng Fung Ho v. White, 259 U.S. 276, 284 (1922)).  This is true even if the person is later denaturalized.  Costello v. INS, 376 U.S. 120 (1964) (person who was convicted of two crimes involving moral turpitude while s/he was a United States citizen cannot be deported on account of them after s/he lost citizenship through denaturalization). 

[318] Rivera-Martinez v. Ashcroft, 389 F.3d 207 (1st Cir. Nov. 4, 2004) (noncitizen’s failure to pursue available claim that he was United States citizen following direct review of order of removal as aggravated felon, procedurally defaulted claim for purpose of habeas review).  But see Theagene v. Gonzales, 411 F.3d 1107 (9th Cir. June 15, 2005) (“Because only an “alien” may be required to exhaust administrative remedies under § 1252(d)(1), the plain language of § 1252(b)(5) requires that upon a petition for review of the BIA’s final order of removal, we must evaluate a petitioner’s claim to United States nationality regardless of whether the claim was raised below.”).

[319] 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.

[320] INA § 316(a)(3), 8 U.S.C. § 1427(a)(3).  An applicant for naturalization must also have been “lawfully admitted for permanent residence . . . .”  INA § 316(a), 8 U.S.C. § 1427(a).  S/he must have “the status of having been lawfully accorded the privilege of residing permanently in the United States as an immigrant in accordance with the immigration laws, such status not having changed.”  INA § 101(a)(20), 8 U.S.C. § 1101(a)(20).  A noncitizen who is naturalized while lacking a lawful admission to permanent residence is subject to denaturalization at any time.  Fedorenko v. United States, 449 U.S. 490 (1981).  If an applicant was in fact by reason of a criminal conviction or criminal conduct, including crimes of moral turpitude that rendered the noncitizen inadmissible, not eligible to be admitted to lawful permanent resident status when s/he was admitted, the naturalization application may be denied and proceedings instituted to revoke the lawful permanent resident status.  It has been held, however, that the failure to disclose an arrest for offenses that did not involve moral turpitude does not warrant denaturalization for suppression of facts that would have resulted in the denial of citizenship.  Chaunt v. United States, 364 U.S. 350, 81 S.Ct. 147 (1960). 

[321] Jalloh v. Dept. of Homeland Security, 2005 WL 591246 (D.Mass. Mar. 11, 2005) (unpublished) (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 had any evil intent in committing the offense; 8 C.F.R. § 316.10 (b) (3) (iii) allows the court to examine the underlying facts behind a conviction to determine whether a naturalization applicant has “establishe[d] extenuating circumstances” that show that applicant does not lack good moral character).

[322] INA § 316(e), 8 U.S.C. § 1427(e); 8 C.F.R § 316.10(b)(iii).

[323] The agency must weigh positive factors against negative. Santamaria-Ames v. INS, 104 F.3d 1127 (9th Cir. 1996); Torres-Guzman v. INS, 804 F.2d 531 (9th Cir. 1986).  

[324] 8 C.F.R § 316.10(c).

[325] INA § 316(a), 8 U.S.C. § 1427(a).

[326] INA § 319(a), 8 U.S.C. § 1430(a).

[327] INA § 319(b), 8 U.S.C. § 1430(b).

[328] INA § 328, 8 U.S.C. § 1439.

[329] INA § § 328, 329, 8 U.S.C. § § 1439, 1440.

[330] Nolan v. Holmes, 334 F.3d 189, 201-202 (2d Cir. 2003) (applicants for naturalization under INA § 329, 8 U.S.C. § 1440 must, consistent with the government’s interpretation of the statute, demonstrate good moral character); Boatswain v. Gonzales, 414 F.3d 413 (2d Cir. June 30, 2005) (aggravated felony bar to showing good moral character applies to persons who have served in the U.S. military on active-duty status during wartime); Lopez v. Henley, 416 F.3d 455 (5th Cir. July 12, 2005) (federal conviction for attempting to possess a controlled substance barred applicant for naturalization from showing good moral character, despite active service in the United States military during the Vietnam War).

[331] INA § 322, 8 U.S.C. § 1433.

[332] INA § 242(b)(5), 8 U.S.C. § 1252(b)(5).  The federal court can address the citizenship claim within the petition for review or refer the matter to the district court for a hearing.  Zayed v. United States, 368 F.3d 902 (6th Cir. May 24, 2004) (8 U.S.C. § 1429 prohibits U.S. district court from exercising jurisdiction to review administrative denial of naturalization application once removal proceedings begin; district court may be able to declare applicant eligible for naturalization “but for” pending removal proceedings and allow applicant to request termination of proceedings to allow naturalization); Grewal v. Ashcroft, 301 F.Supp.3d 692 (N.D. Ohio Jan. 30, 2004) (district court retains jurisdiction to review agency denial of naturalization application even after the agency subsequently initiates removal proceedings).  A district court’s finding of good moral character will not be overturned unless clearly erroneous. United States v. Hovsepian, 422 F.3d 883 (9th Cir. Sept. 6, 2005).

[333]  To order, contact the ILRC at 1663 Mission St., Suite 602, San Francisco, CA 94103; fax 415-255-9792; http://www.ILRC.org.

CITIZENSHIP " DENATURALZATION
United States v. Gomez, __ F.Supp.2d __, 2013 WL 2147021 (S.D. Fla. May 15, 2013) (revoking naturalization where noncitizen failed to disclose conviction for drug trafficking on naturalization application).

NATURALIZATION - IJ LACKS JURISDICTION TO REVIEW ELIGIBILITY
Ogunfuye v. Holder, 610 F.3d 303 (5th Cir. Jun. 28, 2010) (immigration judge lacks authority to determine whether noncitizens are prima facie eligible for naturalization), following Matter of Hidalgo, 24 I. & N. Dec. 103, 105 (BIA 2007).

NATURALIZATION - RIGHT TO PROMPT ADJUDICATION - MANDAMUS
Linville v. Barrows, 489 F.Supp.2d 1278 (W.D.Okla., Apr. 19, 2007) ("[T]he Court concludes that the jurisdiction stripping provision of [8 U.S.C.] 1252(a)(2)(B)(ii) does not divest this Court of jurisdiction over Plaintiffs claims. The Defendants had a ministerial nondiscretionary duty to adjudicate Mrs. Linvilles I-485 application within a reasonable time."; 8 U.S.C. 1252(a)(2)(B)(ii) does not divest district court of jurisdiction to review naturalization issues, since naturalization is not related to removal).

BIA

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Matter of Guzman-Gomez, 24 I. & N. Dec. 824 (BIA May 8, 2009) (the terms "child" and "parent" defined at 8 U.S.C. 1101(c), do not encompass stepchildren and stepparents; a person born outside the United States cannot derive United States citizenship under 8 U.S.C. 1431(a), by virtue of his or her relationship to a nonadoptive stepparent).

CITIZENSHIP - DENATURALIZATION - CONVICTIONS COMMITTED WHILE NONCITIZEN WAS LPR CAN TRIGGER DEPORTATION AFTER DENATURALIZATION OCCURS
Matter of Gonzalez-Muro, 24 I. & N. Dec. 472 (BIA 2008) (denaturalized noncitizen who committed crimes while a lawful permanent resident and concealed them during the naturalization application process is removable on the basis of the crimes, even though the alien was a naturalized citizen at the time of conviction), distinguishing Costello v. INS, 376 U.S. 120 (1964)

REMOVAL DEFENSE - NATURALIZATION - MOTION TO TERMINATE ONLY POSSIBLE WHERE DHS HAS PRESENTED AFFIRMATIVE COMMUNICATION OF PRIMA FACIE ELIGIBILITY
Matter of Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007) (because the Board of Immigration Appeals and the Immigration Judges lack jurisdiction to adjudicate applications for naturalization, removal proceedings may only be terminated pursuant to 8 C.F.R. 1239.2(f) (2006) where the Department of Homeland Security has presented an affirmative communication attesting to a noncitizen's prima facie eligibility for naturalization), reaffirming Matter of Cruz, 15 I.& N. Dec. 236 (BIA 1975). http://www.usdoj.gov/eoir/vll/intdec/vol24/3555.pdf

REMOVAL DEFENSE - NATURALIZATION - MOTION TO TERMINATE ONLY POSSIBLE WHERE DHS HAS PRESENTED AFFIRMATIVE COMMUNICATION OF PRIMA FACIE ELIGIBILITY
Matter of Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007) (a DHS adjudication on the merits of a noncitizen's naturalization application while removal proceedings are pending is not an affirmative communication of prima facie eligibility for naturalization that would permit termination of proceedings under 8 C.F.R. 1239.2(f)). http://www.usdoj.gov/eoir/vll/intdec/vol24/3555.pdf

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Matter of Rowe, 23 I. & N. Dec. 962 (BIA 2006) (where a noncitizen was born out of wedlock and paternity was never established under the law of the country in which his parents resided, his paternity has not been established by legitimation, so he is not ineligible to obtain derivative citizenship under former INA 321(a)(3), 8 U.S.C. 1432(a)(3)). http://www.usdoj.gov/eoir/vll/intdec/vol23/3536.pdf

RELIEF - NATURALIZATION - TERMINATION OF REMOVAL TO ALLOW NATS
Matter of Cruz, 15 I. & N. Dec. 236 (BIA 1974) requires an "affirmative communication" from the DHS to allow an IJ to terminate proceedings to allow a noncitizen to apply for naturalization. This requirement has arguably been superceded by current 8 C.F.R. 1239(f), which no longer requires an affirmative communication.

CITIZENSHIP - NATURALIZATION - DUI - DRIVING UNDER THE INFLUENCE NOT BASIS TO DENY NATURALIZATION
Ragoonanan v. USCIS, 2007 WL 4465208 (D. Minn. Dec. 18, 2007) (unpublished) (district court ruled against USCIS, holding a recent DUI conviction was not a basis to deny naturalization).

First Circuit

CITIZENSHIP - REVOCATION
United States v. Zajanckauskas, 441 F.3d 32 (1st Cir. Mar. 23, 2006) (U.S. naturalized citizenship of a former soldier in the German Army who participated in the clearing of the Warsaw Ghetto during WWII is revoked).
http://laws.lp.findlaw.com/1st/051457.html

Second Circuit

CITIZENSHIP " DERIVATIVE CITIZENSHIP
Garcia v. USICE, ___ F.3d ___, 2011 WL 6825581 (2d Cir. Dec. 29, 2011) (petitioner can derive citizenship if he was in his father's legal custody when his father naturalized, looking in this case first to state law to determine whether there is an enforceable judicial determination or statutory grant of custody; if there is not, actual uncontested custody of the child controls).

CITIZENSHIP - NATURALIZATION - CONTINUOUS PRESENCE
Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

CITIZENSHIP - NATURALIZATION - CONTINUOUS PRESENCE
Gildernew v. Quarantillo, ___ F.3d ___ (2d Cir. Feb. 4, 2010) (one-year absence bar in 8 U.S.C. 1427(b) applied both to the period preceding the naturalization interview and the period following the interview).

CITIZENSHIP - NATURALIZATION - DISTRICT COURT
Bustamante v. Napolitano, 582 F.3d 403 (2nd Cir. Sept. 28, 2009) (where noncitizen properly invoked district courts authority over naturalization applications upon which the USCIS has failed to act for 120 days, under INA 336(b) of the Act, the district court had exclusive jurisdiction over naturalization application).

RELIEF - NATURALIZATION - DISTRICT COURT LACKS JURISDICTION TO RULE ON PROPRIETY OF REMOVAL PROCEEDINGS
Ajlani v. Chertoff, 545 F.3d 229 (2d Cir. 2008) (district court lacked jurisdiction to review the propriety of pending removal proceedings; pendency proceedings precluded plaintiff from stating a present claim for naturalization).

CITIZENSHIP - DERIVATIVE CITIZENSHIP - LEGAL SEPARATION REQUIRED BEFORE SINGLE PARENT CAN CONFER DERIVATIVE NATURALIZATION ON CHILD
Lewis v. Gonzales, ___ F.3d ___, 2007 WL 869029 (2d Cir. March 23, 2007) (parents must legally separate before single parent can confer derivative naturalization upon child, since 8 U.S.C. 1432(a)(3) (repealed 2000) requires the parents of a legitimated noncitizen child to effect a "legal separation" - even when the parents never were married in the first place - before the child may derive automatic citizenship from either of his parents individually). http://caselaw.lp.findlaw.com/data2/circs/2nd/051677p.pdf

Lower Courts of Second Circuit

CITIZENSHIP - NATURALIZATION
Puello v. BCIS, 418 F.Supp.2d 436 (S.D.N.Y. Dec. 13, 2005) (for purposes of applying the permanent bar to good moral character for conviction of an aggravated felony, under INA 101(f), the date of conviction is the date of sentencing or the date the judgment of conviction was filed with Clerk of Court, rather than on date the guilty plea was entered).

Third Circuit

JUDICIAL REVIEW"DISTRICT COURTS JURISDICTION TO REVIEW NATURALIZATION DENIALS
Gonzalez v. Secy of Dept of Homeland Security, 2012 WL 898609 (3d Cir. Mar. 19, 2012) (unpublished) (the jurisdiction vested in district courts by 8 U.S.C. 1421(c) to review naturalization denials is not divested by the priority given to removal proceedings under 8 U.S.C. 1429; district court may grant declaratory relief in the naturalization case notwithstanding the role it may play in terminating a removal proceeding).

CITIZENSHIP - NATURALIZATION - DISQUALIFICATION GROUND THAT REMOVAL PROCEEDING IS PENDING
Zegrean v. U.S. Attorney General, 602 F.3d 273 (3d Cir. Apr. 13, 2010) (noncitizen cannot establish prima facie eligibility for naturalization, under 8 C.F.R. 1239.2(f), when removal proceedings began before the naturalization application was filed), citing Perriello v. Napolitano, 579 F.3d 135 (2d Cir. 2009).

Fourth Circuit

CITIZENSHIP " NATURALIZATION " FRAUDULENT ADMISSION
Injeti v. U.S. Citizenship and Immigration Services, 737 F.3d 311 (4th Cir. Dec. 11, 2013) (affirming district court denial of review of USCIS denial of naturalized U.S. citizenship, where noncitizen made misrepresentations on application for LPR status and submitted false evidence in another immigration proceeding).

RELIEF " NATURALIZATION " IMMIGRATION JUDGE CAN TERMINATE REMOVAL PROCEEDINGS TO ALLOW NATURALIZATION ONLY IF DHS HAS GIVEN WRITTEN CONFIRMATION OF ELIGIBILITY
Barnes v. Holder, 625 F.3d 801 (4th Cir. Nov. 10, 2010) (removal proceedings may only be terminated pursuant to 8 C.F.R. 1239.2(f) where the DHS has presented an affirmative communication attesting to the alien's prima facie eligibility for naturalization).

CITIZENSHIP - NATURALIZATION
Lee v. USCIS, __ F.3d __ (4th Cir. Jan. 25, 2010) (district courts lack jurisdiction to review USCIS denial of adjustment of status on the basis that 8 C.F.R. 245.10(j) was invalid under the APA).

CITIZENSHIP - NATIONAL OF THE UNITED STATES
Dragenice v. Gonzales, 470 F.3d 183 (4th Cir. Dec. 4, 2006) (taking of military oath, required under 10 U.S.C.A. 502, is not sufficient to render noncitizen a national of the United States). http://caselaw.lp.findlaw.com/data2/circs/4th/057050p.pdf

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Jahed v. Acri, 468 F.3d 230 (4th Cir. Nov. 13, 2006) (affirming removal order against claim of derivative citizenship after parents' divorce and father's naturalization, for failure to demonstrate that parents were legally separated for purposes of U.S. immigration law). http://caselaw.lp.findlaw.com/data2/circs/4th/056489p.pdf

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Afeta v. Gonzales, 467 F.3d 402 (4th Cir. Oct. 26, 2006) (rejecting derivative citizenship claim that Ethiopian national automatically became a citizen as a minor when his mother was naturalized; "separation agreement" obtained when parents separated was not a "formal judicial document" and therefore did not suffice to show legal separation prior to divorce). See also, Matter of H, 3 I. & N. Dec. 742 (BIA 1949); Brissett v. Ashcroft, 363 F.3d 130 (2d Cir. 2004) (judicial order requiring payment of child support sufficient); Simpson v. T.D. Williamson, Inc., 414 F.3d 1203 (10th Cir. 2005). http://caselaw.lp.findlaw.com/data2/circs/4th/051174p.pdf

Fifth Circuit

NATURALIZATION - IN PROCEEDINGS
Saba-Bakare v. Chertoff, 507 F.3d 337 (5th Cir Nov. 5, 2007) (the DHS has exclusive authority to announce that a noncitizen is prima facie eligible to apply for naturalization for the purpose of allowing a noncitizen in removal proceedings to naturalize; recognizing part of Matter of Cruz, 15 I. & N. Dec. 237 (BIA 1975) abrogated by amendment of 8 U.S.C. 1421 (1990)).

RELIEF - CITIZENSHIP CLAIM
Rios-Valenzuela v. Dep't of Homeland Sec., __ F.3d __, 2007 WL 3105904 (5th Cir. Oct. 25, 2007) (Court lacks jurisdiction to hear citizenship claim where the DHS initiated removal proceedings after the claim was brought before the district court,).

RELIEF - NATURALIZATION - DISTRICT COURT ADJUDICATION
Walji v. Gonzales, 500 F.3d 432 (5th Cir. Sept. 14, 2007) ("Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is GRANTED. The prior opinion is withdrawn, and the following opinion is substituted ... When the U.S. Citizenship and Immigration Services ("CIS") does not grant or deny an application for naturalization 120 days after the required examination of the applicant, the applicant may ask a U.S. district court to adjudicate the application. 8 U.S.C. 1447(b). Does the 120 days begin to run after the application interview or after the background investigation is complete? The district court held the latter and dismissed the case for lack of subject matter jurisdiction. Reviewing the record de novo, we reverse and remand.").

RELIEF - NATURALIZATION - DELAY LITIGATION IS PREMATURE IF FBI CHECK IS NOT COMPLETE
Walji v. Gonzales, 489 F.3d 738 (5th Cir. 2007) (USCIS must receive a "definitive response" from the FBI before the 120-day time period in 8 U.S.C. 1447(b) begins to run).

RELIEF - NATURALIZATION
Okafor v. Gonzales, 456 F.3d 531 (5th Cir. Jul. 18, 2006) (signing oath insufficient to confer citizenship; it is necessary to participate in public ceremony pledging allegiance to the United States and renouncing all former allegiances to foreign states and sovereignties).

CITIZENSHIP
Marquez-Marquez v. Gonzales, 455 F.3d 548 (5th Cir. Jul. 6, 2006) (under the undisputed facts Moreno did not automatically obtain U.S. citizenship pursuant to section 301(g) of the Immigration and Naturalization Act, 8 U.S.C. 1401(g), by virtue of her adoption by a U.S. citizen).

CITIZENSHIP - NATIONAL OF UNITED STATES
Omolo v. Gonzales, 452 F.3d 404 (5th Cir. Jun. 12, 2006) (person may become a national only by birth or by completing the naturalization process) http://caselaw.lp.findlaw.com/data2/circs/5th/0510192cv0p.pdf

CITIZENSHIP
Hosein v. Gonzales, 452 F.3d 401 (5th Cir. Jun. 12, 2006) (dismissal of plaintiff-mother's claim that her citizenship should be backdated in order to effectuate citizenship for her son in order to allow him to avoid deportation). http://caselaw.lp.findlaw.com/data2/circs/5th/0520460cv0p.pdf

CITIZENSHIP AND NATIONALITY - NATIONAL OF THE UNITED STATES
Omolo v. Gonzales, 452 F.3d 404 (5th Cir. Jun. 12, 2006) (person may become a United States national only by birth or by completing the naturalization process).

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Bustamante-Barrera v. Gonzales, 447 F.3d 388 (5th Cir. Apr. 20, 2006) (sole - not joint - "legal custody" by a naturalized parent is required for a child seeking derivative naturalization; requirement not met where divorce decree awarded "sole physical custody" of child to mother, but required parents to share "joint legal custody.").
http://caselaw.lp.findlaw.com/data2/circs/5th/0560247cv0p.pdf

Sixth Circuit

RELIEF " NATURALIZATION " REMOVAL PROCEEDINGS
Shewchun v. Holder, 658 F.3d 557 (6th Cir. Sept. 8, 2011) (noncitizen must get agreement from DHS that noncitizen is primafacie eligible for naturalization in order to ask immigration judge to terminate removal proceedings in order to apply for naturalization; although DHS may not adjudicate naturalization application of noncitizen in removal proceedings, DHS may determine prima facie eligibility without making a final determination on the application itself), following Matter of Hidalgo, 24 I. & N. Dec. 103 (BIA 2007); Barnes v. Holder, 625 F.3d 801, 807 (4th Cir. 2010).

Seventh Circuit

CITIZENSHIP " NATURALIZATION " DISTRICT COURT JURISDICTION OVER LAWSUIT SEEKING ORDER NATURALIZING NONCITIZEN
Aljabri v. Holder, 745 F.3d 816 (7th Cir. Mar. 11, 2014) (district court had jurisdiction over noncitizens pro se suit for order naturalization or declaration of citizenship, notwithstanding the discretionary nature of the Attorney General's ruling; the USCIS had no jurisdiction to act on alien's application in manner that might moot his federal lawsuit).

CITIZENSHIP " NATURALIZATION " DISTRICT COURT JURISDICTION OVER LAWSUIT SEEKING ORDER NATURALIZING NONCITIZEN
Aljabri v. Holder, 745 F.3d 816 (7th Cir. Mar. 11, 2014) (district court had jurisdiction over noncitizens pro se suit for order naturalization or declaration of citizenship, notwithstanding the discretionary nature of the Attorney General's ruling; the USCIS had no jurisdiction to act on alien's application in manner that might moot his federal lawsuit).

CITIZENSHIP " NATURALIZED CITIZENSHIP " REVOCATION
United States v. Suarez, 666 F.3d 655 (7th Cir. Dec. 16, 2011) (INA 1101(f)(8) and the accompanying regulations prevent a person from establishing good moral character for naturalization or any other relief when the person committed criminal acts within statutory GMC period prior to naturalization, but was not indicted or convicted of the offenses until after naturalization occurred).

CITIZENSHIP - NATURALIZATION - DISTRICT COURT JURISDICTION
Ortega v. Holder, ___ F.3d ___ (7th Cir. Jan. 15, 2010) (reversing district court dismissal for lack of subject matter jurisdiction of action for a declaration of nationality pursuant to 8 U.S.C. 1503(a), as the language of this statute makes it clear Congress intended individuals to pursue one of two routes to establish claims for nationality, including filing an administrative application for a certificate of citizenship, which if denied, could be pursued by way of an action under 8 U.S.C. 1503(a)).

CITIZENSHIP - NATURALIZATION - DENATURALIZATION
United States v. Firishchak, 468 F.3d 1015 (7th Cir. Nov. 20, 2006) (affirming district court denaturalization order based on service in the Ukrainian Auxiliary Police (UAP) during World War II and failure to disclose it in 1949 visa application, and rejecting claims that documents evidencing UAP service were inadmissible; it was an abuse of discretion to permit certain expert testimony on a subject that was not disclosed in a pre-trial expert report; he should have been granted a continuance; the evidence against him was insufficient; and he was denied a fair trial). http://caselaw.lp.findlaw.com/data2/circs/7th/053852p.pdf

RELIEF - NATURALIZATION - GOOD MORAL CHARACTER - AGGRAVATED FELONY BAR
O'Sullivan v. U.S. Citizenship & Immigration Serv., 453 F.3d 809 (7th Cir. Jul. 6, 2006) (affirming denial of naturalization where Congress has called for de novo review of naturalization cases; wartime veterans are not excused from showing good moral character before naturalizing; CIS regulation setting forth a time period for which a wartime veteran must show good moral character was a valid exercise of delegated power; and aggravated felony bar applies to wartime veterans). http://caselaw.lp.findlaw.com/data2/circs/7th/052943p.pdf

Eighth Circuit

CITIZENSHIP - NATURALIZATION - DUI - DRIVING UNDER THE INFLUENCE NOT BASIS TO DENY NATURALIZATION
Ragoonanan v. USCIS, 2007 WL 4465208 (D. Minn. Dec. 18, 2007) (unpublished) (district court ruled against USCIS, holding a recent DUI conviction was not a basis to deny naturalization).

Ninth Circuit

CITIZENSHIP " NATURALIZATION " DENATURALIZATION
United States v. Arango, 670 F.3d 988, 2012 WL 89184 (9th Cir. Jan.12, 2012 (reversing denaturalization order where issue of fact remained as to whether noncitizen, who procured LPR status through fraudulent marriage, had entered into cooperation agreement with the INS allowing him to retain his LPR status).

CITIZENSHIP " DERIVATIVE CITIZENSHIP
Romero-Mendoza v. Holder, 665 F.3d 1105, 2011 WL 6318336 (9th Cir. Dec. 19, 2011) (petitioner's claim of derivative citizenship, through USC mother alone, was defeated by evidence showing his paternity was legitimated under Salvadoran law when parents married after petitioner's birth).

CITIZENSHIP - NATURALIZATION - A NONCITIZEN CANNOT BE CONSIDERED A U.S. CITIZEN ON THE THEORY THAT THE GOVERNMENT IS ESTOPPED TO DENY IT
Mustanich v. Mukasey, 518 F.3d 1084 (9th Cir. Mar. 11, 2008) (rejecting argument that respondent is a United States citizen, although he did not file an application for naturalization prior to the applicable statutory deadline, because the United States is equitably estopped from denying his citizenship because the Government's own affirmative misconduct precluded a timely filing), following INS v. Pangilinan, 486 U.S. 875 (1988) (citizenship cannot be conferred by estoppel where the statutory requirements for naturalization have not been met).

RELIEF - NATURALIZATION AS DEFENSE FROM REMOVAL
Anderson v. Gonzales, __ F.3d __, 2007 WL 2264698 (9th Cir. Aug. 9, 2007) (under 8 C.F.R. 1293.2(f), a noncitizen must obtain permission from the DHS to apply for naturalization before the district courts when the noncitizen is in removal proceedings), agreeing with Matter of Acosta Hidalgo, 24 I. & N. Dec. 103 (BIA 2007).

DENATURALIZATION - UNLAWFUL ACTS COMMITTED DURING GMC PERIOD
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. 316.10(b)(3)(iii), barring good moral character based on commission of "unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts" is not ultra vires to INA 101(f)).

DENATURALIZATION - UNLAWFUL ACTS COMMITTED DURING GMC PERIOD
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. 316.10(b)(3)(iii), barring good moral character based on commission of "unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts" is not ultra vires to INA 101(f)).

DENATURALIZATION - UNLAWFUL ACTS COMMITTED DURING GMC PERIOD
United States v. Dang, 488 F.3d 1135 (9th Cir. May 24, 2007) (8 C.F.R. 316.10(b)(3)(iii), barring good moral character based on commission of "unlawful acts that adversely reflect upon the applicants moral character, or was convicted or imprisoned for such acts" is not ultra vires to INA 101(f)).

CITIZENSHIP - NATURALIZATION - MILITARY SERVICE
Gallarde v. INS, 486 F.3d 1136 (9th Cir. May 11, 2007) (noncitizen seeking naturalization was not barred by the statute barring those who seek exemption from compulsory military service, or the draft, based on alienage from becoming U.S. citizens, since that bar to citizenship applies only to aliens exempted or discharged on the basis of alienage from compulsory training and service in the Armed Forces, and does not apply to a noncitizen who voluntarily enlisted in the U.S. Navy, sought discharge short of completing his enlistment term on the basis of alienage, and was honorably discharged).

Tenth Circuit

CITIZENSHIP - DERIVATIVE CITIZENSHIP
Brue v. Gonzales, 464 F.3d 1227, 2006 WL 2831216 (10th Cir. Oct. 6, 2006) (petition for review from removal order denied, rejecting claim that because he met the statutory requirements for naturalization when his adoptive parents tendered an application on his behalf, he automatically acquired citizenship and was not subject to removal).
http://laws.lp.findlaw.com/10th/059569.html

NATURALIZATION
Abiodun v. Gonzalez, 461 F.3d 1210 (10th Cir. Aug. 30, 2006) (signing oath of allegiance during naturalization examination insufficient to confer citizenship).

DC Circuit

CITIZENSHIP - MISREPRESENTATIONS FOR PURPOSES OF NATURALIZATION - MATERIALITY
In Re Petition of Sousounis, 239 F. Supp. 126 (D.C. Pa 1965) (minor misrepresentations made for naturalization purposes can be explained by language difficulties and a good faith effort by the applicant to explain those discrepancies).

Other

RELIEF"NATURALIZATION"DISTRICT COURT
Hajro v. Barrett, 2012 WL 968087 (N.D. Cal., Mar. 21, 2012) (unpublished) (noncitizen eligible for naturalization, and was not barred as lacking good moral character for providing false testimony in connection with adjustment of status by failing to disclose service in Bosnian army or participating in Muslim religious practices; "false testimony" for purposes of good moral character must be oral statements given under oath).

NATURALIZATION - MILITARY TIME PERIODS
An executive order was issued in July 2002, retroactive to September 11, 2001, declaring the current Iraq War/occupation a "military operation involving armed conflict with hostile force" such that persons who enlist and honorably serve in the military can take advantage of the more generous naturalization provisions of INA 329. See http://www.immigrationpolicy.org/index.php?content=f0611. The executive order doesn't mention the Iraq War specifically, but anyone who serves anywhere in the world is covered by it. Thanks to Margaret Stock.

RELIEF - NATURALIZATION - ILLEGAL VOTING
See Yates Memo (May 7, 2002), "Procedures for Handling Naturalization Applications of Aliens Who Voted Unlawfully or Falsely Represented Themselves as U.S. Citizens by Voting or Registering to Vote."

CITIZENSHIP - NATURALIZATION - DENATURALIZATION -- DISCRETION
Amy D. Ronner, Article, Denaturalization And Death: What It Means To Preclude The Exercise Of Judicial Discretion, 20 GEO. IMMIGR. L.J. 101 (Fall, 2005).

CITIZENSHIP - FOUNDLING STATUTE
"a person of unknown parentage found in the United States while under the age of five years, until shown, prior to obtaining the age of twenty-one years, not to have been born in the United States," shall be deemed a citizen of the United States at birth. INA 301(f).

CITIZENSHIP -- DERIVATIVE CITIZENSHIP - EVIDENCE AND PROOF OF CLAIM
To establish claim of derivative U.S. citizenship, counsel can prepare a package containing proof of date of birth, legal permanent resident status, parents' marriage, and parent's naturalization, and explain to ICE it has no jurisdiction to deport since the client is a United States citizen who must immediately be released from immigration detention. ICE will usually release the client within hours of receiving the package. The documents can be sent to the jailers, the head of ICE for the area, and the ICE Area Counsel. Every person with responsibility for the detention, who has knowledge of the facts establishing the U.S. citizenship of the client, is subject to damages for unlawful imprisonment for every day of false imprisonment. If the client is in removal proceedings, the package can be sent to the court and ICE counsel, and ask counsel to agree to termination of proceedings. The best proof of citizenship is a U.S. passport, which can be obtained more quickly than other proof of citizenship. Ask for a speedy merits date for ICE to prove alienage, and, meanwhile, apply for a passport from the State Department. While the adjudication of an N-600 drags on and on, the State Department generally acts quickly where the evidence is clear. Thanks to Bob Gibbs.

CITIZENSHIP - NATIONAL OF UNITED STATES - CITIZEN OF PALAU FORMER US TRUST TERRITORY
A citizen of Palau (former US Trust Territory), whose father is Micronesian, is visa exempt per 8 CFR 212.1(d). They are admitted and inspected the way a Canadian might be. The CIS Fact Sheet about citizens of Micronesia states that they are free to live and work in the US. The Fact Sheet clearly states that they are not citizens or nationals of the US, so they are subject to removal. These citizens are subject to the grounds of inadmissibility, but do have the right to live and work here as conditions of their admission. Thanks to Sophie I. Feal.

STATISTICS - MILITARY RECRUITMENT
Only 4-5% of the U.S. armed forces are non-citizens, and the vast majority of those are LPRs or U.S. nationals, from certain Pacific islands. See 10 U.S.C. 504 for the law regarding enlistment. They need a Social Security number to join, which is why visitors with B-2 visas cannot normally enlist. The military does not recruit undocumented noncitizens. The few of them who were able to join the US military in recent years used false documents to join. If a person walks into a recruiter's office today and says "I am an undocumented noncitizen and I want to join," the recruiter will normally tell the person to come back after becoming documented.

CITIZENSHIP - IMMIGRATION CONSEQUENCES OF CRIMINAL RECORDS OF CERTAIN CITIZENS
A K-1 Fiance visa shall not be issued unless the applicant provides "information on any criminal convictions of the petitioner for any" crime specified in the regulations. INA 214(d)(1), 8 U.S.C. 1184(d)(1). The consular officer shall not approve a petition unless the officer has verified that the petitioner has not previously petitioned for two persons, and that at least two years have elapsed since any previously approved petition. INA 214(d)(1)(A), 8 U.S.C. 1184(d)(1)(A). Waiver. DHS may grant a discretionary waiver of these limitations, but not except in extraordinary circumstances if the petitioner has a record of violent criminal offenses against a person. INA 214(d)(1)(B), 8 U.S.C. 1184(d)(1)(B). The DHS shall grant this waiver, despite a record of violent offenses against the person, if the petitioner has been battered or subjected to extreme cruelty and is not or was not the primary perpetrator of violence in the relationship, if the DHS determines that (a) the petitioner was acting in self-defense; (b) the petitioner was found to have violated a protection order intended to protect the petitioner; or (c) the petitioner committed, was arrested for, was convicted of, or pled guilty to committing a crime that did not result in serious bodily injury and where was a connection between the crime and the petitioner's having been battered or subjected to extreme cruelty. INA 214(d)(1)(C)(ii), 8 U.S.C. 1184(d)(1)(C)(ii). Procedure. The DHS is not limited by the criminal court record. INA 214(d)(1)(C)(i), 8 U.S.C. 1184(d)(1)(C)(i). The DHS shall consider any credible evidence relevant to the application, and has sole discretion to determine what evidence is credible and the weight to be given that evidence. INA 214(d)(1)(C)(iii), 8 U.S.C. 1184(d)(1)(C)(iii). Disclosure. The consul is required to disclose the criminal record of the petitioner to the applicant. 8 U.S.C. 1375a(b)(1)(A).

RELIEF - NATURALIZATION - TERMINATING REMOVAL PROCEEDINGS TO PURSUE NATURALIZATION BEFORE DHS
AILF Practice Advisory sets out arguments to challenge Matter of Acosta Hidalgo, a recent BIA decision holding that IJs and the BIA lack jurisdiction to determine prima facie eligibility for naturalization in order to terminate removal proceedings. http://www.ailf.org/lac/pa/Acosta_Hidalgo_lac_pa_031808.pdf

CITIZENSHIP - NATURALIZATION - MILITARY RAPID NATURALIZATION
"The Armys one-year pilot program will begin in New York City to recruit about 550 temporary immigrants who speak one or more of 35 languages, including Arabic, Chinese, Hindi, Igbo (a tongue spoken in Nigeria), Kurdish, Nepalese, Pashto, Russian and Tamil. Spanish speakers are not eligible. The Armys program will also include about 300 medical professionals to be recruited nationwide. Recruiting will start after Department of Homeland Security officials update an immigration rule in coming days.

"Pentagon officials expect that the lure of accelerated citizenship will be powerful. Under a statute invoked in 2002 by the Bush administration, immigrants who serve in the military can apply to become citizens on the first day of active service, and they can take the oath in as little as six months." The military has always had the wartime authority to enlist NIV holders and even EWIs.

Anyone who enlists in this program has to be in legal status at the time of enlistment. Nobody who is out of status is eligible. If they fall out of status after they enlist, they can still become citizens, because under INA 329 even an illegal immigrant can naturalize.

Thanks to Margaret Stock

DOD Fact Sheet on the program: www.defenselink. mil/news/ mavni-fact- sheet.pdf

CITIZENSHIP - MISREPRESENTATIONS FOR PURPOSES OF NATURALIZATION - MATERIALITY
In Re Petition of Sousounis, 239 F. Supp. 126 (D.C. Pa 1965) (minor misrepresentations made for naturalization purposes can be explained by language difficulties and a good faith effort by the applicant to explain those discrepancies).

ARMED FORCES ENLISTMENT " NATIONALITY REQUIREMENTS
See 10 U.S.C. 504(b) (requirements for enlistment in the Armed Forces: A person must be a U.S. national, lawful permanent resident, a citizen of certain Pacific Islands, or vital to the national interest in order to enlist lawfully; the Army checks a persons paperwork with DHS to see whether the person falls into one of those categories, and also runs a fingerprint check and other database checks).