Criminal Defense of Immigrants

United States Citizenship, lawfully obtained through birth, derivative citizenship, or naturalization, is a complete bar to deportation and inadmissibility.[156]  See § § 3.13-3.20, supra.  The same is true of United States “nationals”[157] and certain American Indians born in Canada.[158]  However, failure to raise a claim of citizenship before an immigration judge may result in a loss of opportunity to raise the claim later.[159]  When entering the United States, the burden is on the entrant to show citizenship.[160]

Nothing short of participating in a public citizenship ceremony following a lawful application for naturalization will transform a noncitizen into a citizen.[161] Denaturalization, which is very rare, generally occurs only upon government discovery of some fact that, if known at the time citizenship was granted, would have prevented naturalization.[162]

[156] 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). 

[157] See § 3.18, supra.

[158] See § 3.19, supra.

[159] 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.”).

[160] 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.

[161] See, e.g., Abiodun v. Gonzalez, 461 F.3d 1210 (10th Cir. Aug. 30, 2006) (signing oath of allegiance during naturalization examination insufficient to confer citizenship); 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); 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).

[162] See § 3.20, supra.