(A)  Reasons a Client May Answer the Question Incorrectly.  Some clients will conceal noncitizen status in the mistaken belief that – as noncitizens – they would not qualify for public defender services or would suffer other adverse consequences at your hands 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 because s/he was married, or over 18 or not a lawful permanent resident at the time of the parents’ naturalization.

 

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

 

                Many noncitizens assume if you ask whether they are a citizen, that you are really asking whether they are in the United States legally, and answer “yes” since they have a green card.  In many communities, “citizen” and “green card holder” are seen as equivalent.  It is very important, therefore, not to accept a client’s statement s/he is a citizen without careful verification.

 

                You can ask where they were born.  The arrest report will often indicate the suspect’s “place of birth.”  If they were born in another country, they can become a U.S. citizen only upon completing the full naturalization process.[35]  Make sure this actually happened before you accept a client’s quick answer “yes” to a citizenship question.

 

Some clients may be U.S. citizens and be unaware of it.[36]  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?  Did one or both of their parents naturalize when they were still under 18 years old?   Were they adopted?  If the answer to any of these questions is “yes,” refer the person to competent immigration counsel for analysis of citizenship.[37]

[35] See § 3.16, infra.

[36] See § § 3.14-3.17, infra.

[37] See § 3.43, infra, for referral suggestions.

Second Circuit

CITIZENSHIP - COUNSEL'S DUTY TO VERIFY - NONCITIZENS' BELIEF THEY CANNOT BE DEPORTED IF THEY HAVE PAPERS
It is common for noncitizens to believe the concept of "citizen" includes a lawful permanent resident with papers legalizing their immigration status in the United States. (E.g., People v. Castro-Vasquez (2d Dist. March 26, 2007) 148 Cal.App.4th 1240, 1246 n.6, 56 Cal.Rptr.3d 406 ["However, the probation officer stated in his report that he told appellant he could be deported and appellant replied, 'That's O.K., I have papers.'").

Ninth Circuit

CITIZENSHIP " DERIVATIVE CITIZENSHIP " STEPCHILDREN
Acevedo v. Lynch, ___ F.3d ___, 2015 WL 4999292 (9th Cir. Aug. 24, 2015) (the definition of child in citizenship and naturalization provisions of INA does not include stepchildren).

CITIZENSHIP - FACTUAL QUESTION CONCERNING IDENTITY OF PETITIONER'S FATHER
Ayala-Villanueva v. Holder, 572 F.3d 736 (9th Cir. Jul.14, 2009) ("a genuine factual dispute [exists] concerning the identity of Ayala's father and . . . the resolution of this factual dispute will determine whether or not Ayala acquired derivative citizenship. Accordingly, we transfer the proceedings to the [district court] for a new hearing on [his] nationality claim and a decision on that claim as if an action had been brought" for declaratory relief under 28 U.S.C. 2201. 8 U.S.C. 1252(b)(5)(B)") (internal quotes omitted), citing Chau v. INS, 247 F.3d 1026, 1032 (9th Cir. 2001).

Other

RESOURCES " CITIZENSHIP " DERIVATIVE CITIZENSHIP " CHART
chart at http://www.ilrc.org/files/documents/natz_chart-c-2016-3-29.pdf