Tooby's California Post-Conviction Relief for Immigrants

(B)

Ways U.S. Citizenship May be Obtained.  In general, a person cannot be removed from the United States[37] if s/he was:

(1)     Born in the United States, Puerto Rico, the U.S. Virgin Islands, or Guam; or

(2)     Born outside the United States, but “acquired” U.S. citizenship automatically at birth through birth to U.S. citizen parents; or

(3)     Born outside the United States, but naturalized as a U.S. citizen (either by filing his or her own application as an adult; [38] or

(4)     Born outside the United States, but obtained “derivative” U.S. citizenship during childhood through naturalization of parent(s) as United States citizens before the client reached the age of 16, 18, or 21, depending on the law in effect at the time of naturalization;[39] or,

(5)     Born in American Samoa, or Swains Island as a U.S. “national”;[40] or

(6)     Born in Canada and is a Native American.[41]

It is possible for certain persons to be denaturalized.  If denaturalized, they are generally returned to the status they held before naturalization and then removal proceedings can be commenced.  See § 4.20, infra.

[37] See, e.g., Mireles v. Gonzales, 433 F.3d 965 (7th Cir. Jan. 10, 2006) (petition for review of removal order denied over claims that defendant agency failed to establish that respondent is not a citizen of the United States).  See also Perez v. United States, No. 1:05-CV-1294(LEK) (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.”)

[38] See INA § § 310 et seq., 8 U.S.C. § § 1410, et seq.  This summary was drawn from M. Vargas, Representing Noncitizen Criminal Defendants In New York State, Chapter 2, p. 2-2 (NY State Defender’s Association, Criminal Defense Immigration Project, 2d ed., 2000).

[39] See INA § § 320-321, 8 U.S.C. § § 1430-1431.

[40] See INA § § 301(a) & (b), 302, 304-307, 8 U.S.C. § § 1401 (a) & (b), 1402, 1404-1407 (citizen by birth in the United States, Puerto Rico, U.S. Virgin Islands, or Guam); and INA § 308, 8 U.S.C. § 1408 (noncitizen national by birth in American Samoa and Swains Island).

[41] INA § 276, 8 U.S.C. § 1326.