Aggravated Felonies

 

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.