(B)  Reasons a Client May Answer the Question Incorrectly.  Some clients will conceal noncitizen status in the mistaken belief that they would not qualify as noncitizens for public defender services or would suffer other adverse consequences if they revealed their status to you.

 

            Other clients may honestly believe they are U.S. citizens, since all their brothers and sisters automatically became citizens when both parents naturalized, but the client was the only one who did not do so because s/he was married, or s/he was over 18 or not a lawful permanent resident at the time of the naturalization.

 

            Still other clients may erroneously believe they were born in the United States, and are therefore U.S. citizens.

 

            It is very important not to accept a client’s statement s/he is a citizen without careful verification.  Many immigrants, when asked, “Are you a citizen?” interpret the question as asking, “Are you here legally?” and answer accordingly.  They may say “Yes” when they are not a U.S. citizen, but are here legally as a lawful permanent resident, refugee, or in other lawful status.  In many communities, “citizen” and “green card holder” are equivalent.

 

            You can ask where the client was born.  The arrest report will often indicate the suspect’s “place of birth.”  If s/he was born in another country, then s/he became a U.S. citizen, if at all, through the naturalization process after three to five years lawful permanent residence, a naturalization application, an interview, and a formal swearing-in at a mass ceremony conducted by a federal judge.  Make sure this actually happened before you accept a client’s quick answer “yes” to a citizenship question.

 

            Common documentation of U.S. citizenship includes a birth certificate establishing that the client was born in the United States (or a listed possession); a United States passport; a U.S. Certificate of Citizenship, INS Form N-560 or N-561; a U.S. Certificate of Naturalization, INS Form N-550 or N-570;, and a U.S. Citizen Identification Card, INS Form I-179.

 

            Some clients may be U.S. citizens and be unaware of it:  Does the client have a parent or grandparent, living or dead, who may have been born in the U.S. or who may have acquired U.S. citizenship?  If so, it is possible that the client has unknowingly inherited U.S. citizenship.  Ask this question of the client’s spouse as well.  Generally speaking, if the client was under 18 years of age when both parents (or the custodial parent) obtained naturalized citizenship, s/he became a U.S. citizen automatically by derivation without filing an application, or even necessarily being aware of it.  There are tables on derivative citizenship that lay out the sometimes-complicated rules.[20]

 

            If the answer is yes, refer the person to competent immigration counsel for analysis of citizenship.

[20] See Ed Swanson, Challenging Alienage: Is Your Client a U.S. Citizen? in K. BRADY, California Criminal Law And Immigration, Appendix 9-B, at end of Chapter 9 (2004), which attaches the tables for determining derivative citizenship; M. Vargas, Representing Noncitizen Criminal Defendants In New York State, Chapter 2 (NY State Defender’s Association, Criminal Defense Immigration Project, 2d ed., 2000); I. Kurzban, Kurzban’s Immigration Law Sourcebook, Appendix B, pp. 941 ff. (Am. Imm. L. Foundation, 8th ed., 2002-2003).

Eleventh Circuit

AGGRAVATED FELONY " THEFT " SHOPLIFTING
Ramos v. U.S. Attorney General, ___ F.3d ___, 2013 WL 599552 (11th Cir. Feb. 19, 2013) (Georgia conviction of shoplifting, in violation of Georgia Code 16"8"14(a)(1) [theft has two alternative intent elements: the intent of appropriating merchandise to his own use without paying for the same or to deprive the owner of possession thereof or of the value thereof, in whole or in part ...], is not categorically an aggravated felony theft offense, for purposes of deportability, because it can be committed with mere intent to appropriate, which falls outside the generic definition of aggravated felony theft); following Jaggernauth v. U.S. Attorney General, 432 F.3d 1346 (11th Cir. 2005) (a theft statute that included two disjunctive intent requirements"an intent to deprive and an intent to appropriate"was divisible and did not categorically constitute an aggravated felony theft offense).

AGGRAVATED FELONY " THEFT OFFENSE " GENERIC DEFINITION
Ramos v. U.S. Attorney General, ___ F.3d ___, ___, 2013 WL 599552 (11th Cir. Feb. 19, 2013) (an aggravated felony theft offense, under INA 101(a)(43)(G), 8 U.S.C. 1101(a)(43)(G), is defined as: the taking of property ... with the criminal intent to deprive the owner of rights and benefits of ownership, even if such deprivation is less than total or permanent.); quoting Gonzales v. Duenas"Alvarez, 549 U.S. 183, 189, 127 S.Ct. 815, 819"20, 166 L.Ed.2d 683 (2007).