Criminal Defense of Immigrants

(A)  In General.  Anyone who is not a citizen or national of the United States may be subject to the grounds of removal.  This is generally true regardless of a noncitizen’s particular immigration status.[53]  Immigration status can determine whether a noncitizen will be subject to inadmissibility or deportability,[54] and will often be a factor in determining whether the noncitizen is eligible for relief from removal in immigration court.[55]

The following three groups cannot be deported:

                (a)  United States Citizens cannot be deported,[56] unless they acquired citizenship by naturalization, and the grant is revoked.  Citizenship can be obtained in a number of ways.  See § 3.13-3.17, 3.20, supra.

                (b)  Nationals of the United States cannot be deported.  See § 3.18, supra.

                (c)  American Indians born in Canada cannot be deported.  See § 3.19, supra.

These are the gold standard of safe havens: if the client falls within any of these groups, s/he absolutely cannot be deported under any ground of deportation whatsoever.  Naturalization or claiming derivative citizenship (or U.S. Nationality) may therefore be a defense to removal.[57]  The courts must evaluate claims of United States citizenship before ruling against a person on the basis that the person is a noncitizen.[58]  The burden of proof on this issue changes according to the context,[59] but always remains on the government if it is attempting to establish a ground of deportation, such as the aggravated felony conviction ground of deportation.[60]  Naturalization may also act as a form of relief from removal.[61]

[53] For types of immigration status, see § 15.3(A), infra.

[54] See § 15.5, infra.

[55] See Chapter 24, infra.

[56] Perez v. United States, ___ F.Supp. ___, No. 1:05-CV-1294 (LEK) (N.D.N.Y. 2006) (“[B]ecause Petitioner has established that he is a United States citizen, it is a constitutional violation to convict him for reentering the United States. As a result, the Court finds that Petitioner’s conviction and, in turn, his sentence should be vacated pursuant to 28 U.S.C. § 2255.”)

[57] See § 24.13, infra.

[58] 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.”).

[59] 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.

[60] Woodby v. INS, 385 U.S. 276 (1999).

[61] See § 24.13, infra.