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Complex Naturalization and Citizenship Issues: How to get Your Clients to Citizenship

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Complex Naturalization and Citizenship Issues: How to get Your Clients to Citizenship

This program will review your clients’ path to citizenship and how to overcome the obstacles of the naturalization process. The course will discuss how naturalization is considered “complex” while going over the basics of eligibility requirements and identifying underlying obstacles such as continuous residence, travel history, tax concerns, and false claims to the U.S. Office of Citizenship. By the end of the course, attorneys will be able to understand and potentially overcome these obstacles to achieve the best possible outcome for their clients.

Transcript

- Everyone, today we're going to be talking about complex naturalization, how to get your clients to citizenship. And it's not just naturalization, it's also going to be citizenship issues, but it's going to help us sort of identify whether the individual is a citizen already and whether or not they're eligible for naturalization. So it's a citizenship CLE. My name is Ruby Powers, and today I'm gonna be walking through a lot of different topics, but just a little bit about myself. I've been practicing for 14 years. I've had my own firm for 13 and I'm board certified in immigration with the State of Texas Board of Legal Specialization. I also wrote a book about law practice management called "Build and Manage Your Successful Immigration Law Practice: without Losing Your Mind," and also run the company called Powers Strategy Group, which does small business and law practice management consulting. All right, so let's go ahead and dive right in. So we're gonna be reviewing your client's path to citizenship and how to overcome the obstacles of a naturalization process. The course will discuss naturalization and the complex matters while going over some basic eligibility, because we need to make sure that we know the basics before we build upon those, but we won't spend too much time on that. We're also gonna talk about other things to consider like continuous residence, travel history, tax concerns, false claim to citizenship, and we'll be able to understand those obstacles, be able to identify options for an individual. And we're gonna go over a lot of different topics within citizenship and naturalization. So let's get started. So here we go. And the first thing I wanna do is go over the topics we're gonna discuss. So basic naturalization eligibility requirements, and you know you've heard that before, right? Where they say always make sure that the person you're talking to in immigration, that they're not already a citizen. I mean, if they are, wonderful. And I'll tell you there's been about three or four times when the individual did not know they were a US citizen and I was able to figure it out, but they don't happen very often. And when they are, I double check, I crossing my T's and dotting my I's before I tell them because I don't want to disappoint them and get their hopes up. The other thing to talk about in these complex matters are midwife birth citizenship issues. Practicing on the border with Mexico, I see a lot these, and so I wanna bring to light some things to consider. We're gonna talk about general eligibility for spouses of US citizens employed abroad, which we're talking about the 319b eligibility, also naturalization through military service. And then we're gonna go into these general challenges like criminal matters, challenges to good moral character, then physical and continuous residence, considerations, and the importance of travel history. And having also living in a big international city, I see a lot of expat clients, and so that's where I get my experience with residence considerations. And then diving more into tax concerns, including child support and outstanding income tax payments, and then going in further into consequences of misleading information on prior applications, false claims to citizenship, and then just general best practices for filing complex naturalization case and avoiding pitfalls. So this is going to cover a lot of different aspects of complex citizenship issues. And so we're gonna go ahead and dive in. We might not cover every single thing, but I think that by watching, listening to the CLE, you'll have a really good understanding. And I'm also going to give you some stories, hopefully we have enough time, of different cases that I've seen and learned along the way. So let's go ahead and get started with the basics. So the basic naturalization eligibility requirements, the applicant must meet the minimum age requirements, 18 years of age or older, must have a legal permanent resident for at least five years, if they're married to and living with a US citizen, must be a resident and married for the past three years, then have a good moral character and have a basic knowledge of US history. Now these are the big highlights. Of course, you need a screen for a whole bunch of other stuff, but these are like the big ones, the big takeaways. Okay, so let's keep going into that. You need to have lived in the United States the required amount of time. So if we're talking about the general provision for five years basis, then it would be five years. And then if it we're basing this off of the three-year rule, by being married and living with US citizen, then the three-year rule can apply. And that you need to show that you've been physically present in the United States for 30 months if we're using the five-year rule, which basically is you take half and you add a day of that time, right? And then in the other case, it would 18 months if you're using the three-year rule, and that showed that you've lived at least three months in the state or the USCIS district where you claim residence. And this is about jurisdiction, this is something that I think a lot of people overlook, but when people are coming back to the United States as expats or moving around, this is something to consider before submitting the application. So, okay, I think we should spend a lot of time here, best practices for filing and avoiding these pitfalls. You really, really have to screen well. I've heard it said that this is the last opportunity for USCIS to determine whether or not they made a mistake. And a lot of legal permanent residents take this last step very lightly. They're like, "I've got my green card, I've had it for years, I got this. What's one little form?" And that's really not what it is. This is the last chance. And if a person obtained their legal permanent residency a long, long, long time ago, then there could have been some mistakes because things were not as digitalized, they might not crosschecked things between biometrics and criminal background checks. There could have been something a little bit messy. So especially for those folks who've had it for a really long time, those are ones, I mean, of course I'm loving to convert them to a citizen, but I'm also wanting to make sure that they're eligible. So you wanna review the evidence before deciding whether to file. It's not just like, oh, you've had your green card for five years or three years, oh, you're great. No, no, my dope. And in fact, when I'm doing the screening, I always, even if I've been doing hundreds and hundreds and thousands of times go through my intake that has all the key questions because I don't wanna forget one key element. And because we don't wanna waste the filing fee, the legal fee and all that processing time, right? So then we also went to review the prior application and denial of applicable. I learned that the hard way where somebody had filed before gotten denied, and somehow didn't tell me that and I had not FOIA'd them, so now on my intake, I say, "Have you ever applied before? What was the result? Obviously, it would've been a denial or withdrawal. Otherwise, we wouldn't be having this conversation. But you really wanna have a copy of that prior application to make sure that you're consistent, unless there are some changes, and you also wanna make sure that there's a change in circumstance of why you're eligible now, but you weren't before." For example, it could have been because they were found to not have good moral character at the time, and now you waited enough time, and so they are, or it could have been an interpretation of the criminal record, but now they're eligible. So anyway, make sure to check for that and get a copy of that. I mean, that they had to dig it up from a FOIA or from a prior attorney. Now review their legal, permanent residence. How was it obtained in the first place? Were there any red flags? I mean, this can be a situation, I was hired earlier this year for somebody who filed on their own and they were given a nasty denial, oh no, it was actually, it was a notice of an intent to revoke their legal department residency after they've had naturalization because the USCIS did not acknowledge that they had a waiver or did not need a waiver, or that they had met their J-1 residency requirement. And actually they had submitted evidence, which is, for some reason, US hadn't acknowledged it. So this is just another example. A lot of times when I've taken the case, they got a green card? Okay, great, let's go to citizenship, let's go to naturalization. No, no, nope, you need to double check. How did they get there in the first place? Was it through marriage? Was it through a parent? How was it? And you wanna double check, was it legit? Were they eligible for it? And I mean, that can be a little intrusive. They might be like, "Why are you asking all this? But you know, you gotta just say, like, "I'm just crossing my T's and dotted my I's. I just wanna make sure we're not gonna have any problems." And having done this a lot, I've seen those horror stories where yeah, they get a notice of intent to deny or denial or they get put in immigration court. So it doesn't happen that much, but it happens enough to make you really remind you to screen for this, right? So then you also wanna review their travel history. On the N-400, there's that one page that says, "When did you come in? When did you leave? How many days were you gone? Where did you go?" I like to say, go fill that one page out, and then tell me your dates. When people do their own Excel sheet, they somehow make it way, way more complicated, but whatever they're gonna do, I want them to do it. Sometimes, people get, I will just say, a little lazy, and they're like, "Here, you figure it out." You look at my passport stamps." No, ah, yeah, okay, we will double check it, but we need them to do it because sometimes you don't get a stamp when you enter, and exits might not be clearly indicated on the other country, so you want to make sure, and this is really important for people who have been out a long time and you're just like, you're getting pretty close or you realize that they're gonna have to wait a little bit in the US before you can file. So you also wanna check to see, was their stat US ever abandoned? Yeah, I've seen that too, where I think they had a green card, but they left the country for a long time, tried to enter on a tourist visa or something like that, or an ESTA, and trying to think they were still legal permanent resident but they really weren't, so you wanna double check that. And then do the Freedom Information Act request as necessary because if you are really unsure, why they get a denial? What did they do? What happened? Then just go ahead and do the USCIS FOIA for that. And as we mentioned at the beginning, make sure they're not already a US citizen. So in the form, they have some ways to double check. They ask, "Were your parents married? Did this happen before you're 18? To blah, blah, blah." Because what they're trying to do is double check your aren't already a citizen and you're just filling up the wrong form. And actually, that reminds me of another case. Yeah, poor guy. He actually, he applied for naturalization on his own, come to find out he was already a citizen. His mom was a citizen, he became one at birth, but how she was a citizen and her proof of citizenship was sort of like questionable. So when he came to US, his N-400 had been denied, but what we had to do was like, we had not reached out to national archives, do FOIA. It was really, I think we got it. We figured out that he's okay, and I think we got his N-600 approved, but we're still trying to find proof of how to prove that what the mom's status. But apparently, she is a citizen from a long, long time ago. But anyway, the reason why I mention that is because if they are a citizen, the naturalization's not the way to go. It would be either the N-600 for a certificate of citizenship or applying for a passport. Okay, so just briefly, this can get really confusing. There's acquired versus derived citizenship, and there's different provisions of the Immigration Nationality Act, and depends on a lot, a lot of different aspects of when did it happen and things like that. So that's the reason why I'm gonna talk a little bit about this here because we wanna make sure, just to double check, is this person a citizen or not, so that we don't spend a lot of time doing the naturalization when they're not even eligible for it. So acquired at birth, there's charts out there, and it's all about, were you born abroad to how many of your parents were a citizen at the time? Were your parents married or not married? What year were, what day, some even comes down to time were you born? Was your parent, a lot of the old ones, was the father in the military? Did the father ever legitimate an out of wedlock child? So there are so many factors, which it's why it's hard to memorize these facts because whoever comes this particular situation where they're like, "I don't know," you really just have to start asking those questions. When were you born? And were your parents married? And sometimes they don't know. They say, yeah, but then they don't know. So you've really gotta double check all those facts. So let's just say there's acquired and there's acquired out of wedlock, which is out of wedlock is harder. Out of wedlock means that the child was born and the parents were not legally married. And then, oh yeah, you can get into a whole bunch of things about, well, was it legally married or not? Is it common law? Is it . Really do a lot of detective work. And then there's also derived after birth. And so these are all things to consider. And let's go ahead and talk more. So is your client already a citizen? So let's think about it. There are two general ways to obtain citizenship through US citizen parents, before the age of 18. Now Congress enacted laws to determine how citizenship is conveyed by US citizen parent or parents children born outside of the United States. The law in effect at the time of the birth, like I mentioned, determines whether someone born outside the US is a US citizen to a US citizen parent or parent is a US citizen at birth. In general, these laws require that at least one of those parents was a US citizen at the time of birth and the US citizen parent that lived in the US for a period of time. So a lot of these charts, it's like parents live at least 10 years in the US before the five after the age of two, after the age of 14. I mean, it's hardly hard to . Always do it, it's just the best thing to do. And then, I mean, I've had times where I'm like, turning out with someone and they miss being a citizen by a couple of months because their mom or dad didn't live in the US long enough. It's really sad. So in addition, children born abroad may become US citizens after birth, and we're gonna talk about that in a second. So there's, if you have the Kurzban, a law book, at the very back of their citizenship, IRLC, ILRC has charts as well. There's a lot of charts and you can find them online. They basically took the complex changes in the INA, and made it a little bit easier to digest. But sometimes there's little asterisks and you have to double check what that change in law was. And like I said, is can also depend on, there's things to consider would be when the child was born, like the date month, year, even time, whether the parents were married or not, whether one or two of the parents, and even if it was the father and unwed or out of wedlock, then that's usually a lot more difficult. But if they legitimated them before they turn 18, usually that can solve it, and it also depends on how much time the parent lived. So you get what I'm saying? There's a lot of factors here. Okay, and why don't I state this story here? Because this is interesting. I have a really interesting story about my mother and she actually acquired citizenship at birth from her US citizen parents, so she was born in Mexico. And the way the law was in Mexico to own land at the time, you could not be a non-Mexican citizen, so she actually renounced her US citizenship at the consulate, and then later moved to the US, married a US citizen, had three US citizen children, and pretty much lived the rest of her life in the United States. And when I was in law school, my mom had been struggling through the green card process and trying to get her citizenship. And I was just like really questioning this. I was like, wait a minute, she should be a citizen. And then I found that whole 1975 document from the consulate where she actually did renounce her citizenship, and I was just like, "Wow, mom." Anyway, and well, I was talking to my law professor at the time, and he was like, "You know, I think there is a Supreme Court case about this." And it was Vance v. Terrazas." And I was like, "Okay." And so I looked into it, and long story short, yeah, that was a long story short. I had to write to the State Department. And the other thing that was more complicated about my mom's situation is that, somehow she had never gotten a birth record abroad. So even though she was born to US citizen parents who were married at the time of her birth who had plenty of time in the US, and so she was a citizen at birth, somehow she had never gotten a birth record abroad. And so she technically didn't have any proof that she was originally a citizen in the first place. And so I did a whole bunch of detective work, got a lot of records of my grandparents' college transcripts, high school transcripts, which was really hard 'cause it was like back in the '40s and stuff. And I wrote a letter to the State Department and I said, "Hey, my mom was a citizen and there's this Supreme Court case, and she married a citizen, had three children, and lived the rest of her life in the US. I mean, according to this case, it says that it's your burden to prove she actually really didn't want to renounce her citizenship." And they're like, "Yeah, you're right. Use this letter to go apply for a US passport." And I was like, "What? Okay." So we did, and we got the passport and she later passed away, but I know she's been open to letting me to share this story because anybody who can learn from this and help them obtain their citizenship, I would love to do that. But also I highlight this because a person could be a citizen in their whole lives and not know it. So in fact, my mom was actually a citizen her whole life. She technically renounced it. But then later that Supreme Court case said that it was the government's burden to prove that she really intended to renounce it, and then she was able to obtain proof of her citizenship. So, okay, we'll move on, but that's a personal story that actually is why I really am fascinated about citizenship issues. So let's move on to general requirements. Genetic, legitimated, or adopted child automatically acquiring citizenship after birth. So a child born outside of the US automatically becomes a US citizen when all of these things have been met on or after February 27th, 2001. So let me just go back for a second. The reason why they created this is because there was a lot of people who had a misunderstanding. I think there was a lot of adopted kids like in the '70s and such, and I think even like early '80s that the US citizen parents thought that they had passed on, they had taken care of the immigration documents, but they had not. And there was a lot of kids who were just becoming stateless or just unfortunately were aging out and not eligible for citizenship very easily. It was getting more complicated after age 18 or 21. So this came about. So these are the requirements to check for, the child has at least one parent, including an adoptive parent, who's a US citizen by birth or through naturalization, the child is under 18 of age, the child is a lawful permanent resident, and the child is arriving in the US in the legal and physical custody of the United States citizen parent. So all of these things have to be met. And if they're not, then you don't automatically become a citizen. Now, when you do meet all these, then you can go apply for the N-600, the certificate citizenship, or you can also apply for the US passport. Now I'll just say here that usually it's better to do the N-600 even though it takes a while and costs more money because that does not have an expiration date. But if you apply for the passport, it does have an expiration date, and that could be a challenge later on if they ever want to not approve you. So I would suggest the N-600 right now. Now a child born outside of the US through assisted reproductive technology to a US citizen gestational mother who's not also the genetic mother may acquire US citizenship under INA 320 if the child's gestational mother is recognized by the relevant jurisdiction as the child's legal parent at the time of the child's birth and the child meets all the requirements under INA 320, including the child is residing in the United States in the legal and physical custody of the United States parent. So with the reproductive technology, this does make things a lot more complicated. I think we saw an article several years ago, not that long ago, where a same sex couple had two children and one was getting able to get citizenship and one was, I don't remember the facts. But basically, and then they did this whole media thing about just how the law was and how one of their children was a citizen, one wasn't, I think by the genetic material. Anyway, this gets complicated. It takes this thing to a whole 'nother level. Anyway, a stepchild of a US citizen who has not been adopted and does not have another US assistant parent does not qualify for citizenship under this provision. And this is where it's really important to explain. Sometimes, you have to look at the definition in INA under, I think it's 101, they have lots of definitions. And sometimes, things work for adopted parents, and sometimes, they don't. And the definition of child and parent, it change, and there's a lot of misunderstandings about that. So don't take it for granted that it's applied equally everywhere. You really gotta double check that and that's where people have made mistakes. So, okay, let's go to another topic that I see a lot being on the border. And so I'm gonna just share some information here. So midwife birth citizenship issues. So if a client was born to a midwife, so a midwife is like a person who helps assist with a child birth and they're not generally a doctor, and this was very, very common, lots of years. I mean, the cases I'm seeing are people born in like the '70s and maybe early '80s that I'm seeing this issue with, maybe that's just catching up to them. But if they were born to a midwife near the Mexican border, so not in a hospital, and you can be born to a midwife in a hospital nowadays, I know you can, but what we're really talking about is people who generally were more comfortable with midwives, and it was a lot about economics and not affording a hospital from the people I've talked to. And so generally, you're at some, a birthing center, unofficial birthing center, or someone's house or something like that. So they were born near the Mexican border, this could become concerns for the citizenship. So common issues when applying for renewing their US passport. And you're like, well, why is this an issue? Well, basically, there were a whole bunch of midwives who were saying the child was born on the US side. And then at one point, there was this whole issue, fraud that came about and a whole bunch of midwives got in trouble for having declared that the children were born on the US side, they actually were born on the Mexican side. And so the midwives who were on these hit lists of fraud list, if you will, a lot of them to get out of some of their problems, they would make a list. And they said, "Oh, these kids really were born on the US side," or "All these kids were really born on the Mexican side." Oh, so just by being born by a midwife that has problems, I mean, obviously, there you go, we got a big red flag right there. But sometimes, and this happened to one of the cases I had, the client was actually born on the US side, but the midwife lied when she was in trouble and said that he was born on the Mexican side. So, oh my goodness, right? So things red flags, and this is things for you to look for, and this is things for, this is what the State Department is looking for when they're looking at the passports. And I'll just tell you, usually you're not getting this case at the beginning. You're getting this after the person's had a passport and they renew it and then they get it, they try to renew it, and then it gets a lot of requests for evidence, a lot of asking for more evidence, or passport gets denied, and then they come to you. So it's usually a reactive situation and not really being proactive. Yeah, I'd say about 100% of the times I've worked on these, it's because we're having to be reactive to something and maybe had been denied, and then we're proactively being reactive to having known that it was previously denied. So here red flags, delayed registration of the US birth certificate. And what I mean delayed, I'd probably say anything more than about a month. It looks suspicious. Some people told me, "Well, this midwife would only register all the birth, the first of the month or whatever." Okay, so maybe that makes sense. But really, why does it take so long? So when you see somebody register a few months late or years late, oh my goodness, those are super duper red flags, because what the State Department was doing is they were running research records on the Mexican side, and they were looking to see if there was a Mexican birth certificate registered before the US birth certificate was, because this is what would happen. The Mexican parents would come across and give birth on the US side. And with a midwife, it was not very expensive and didn't have to pay for our hospital, and didn't have to have all that care, and the red tape that they just couldn't afford, and all that pre-planning. And then what they would do is they would run back over to the Mexican side, register the child's birth, so the kid could get benefits and go to school. And then later, they would get to the Texas or the US birth certificate. But then this became a problem because one of the reasons the State Department says that they are right is that, when they see the Mexican birth certificate registered before the US birth certificate, that doesn't necessarily mean the child was born on the Mexican side, but it has been a huge problem, and I even have a case that I'm working on right now where we're working on, I think, what are we doing? Amending, we're in the pre-hiring stage, more of the consultation, but consulting with the Mexican attorney, we're working on either nullifying or amending the Mexican birth certificate because it had some insignificant errors before we apply for a US passport. And so anyway, that could be something you have to do for this, and that's something I've done just recently actually. And it takes several months, so this is sort of a long game that we're playing on the Mexican side before we can work on the US side. Now, other red flag are a lack of proof born on the US side of the border. So like the story I said, the parent comes over here, it's usually the mom, and she comes over here. I mean, actually the case I was working on this week, the mom came over and gave birth, I think on the same day and left on the same day. You're like, really, we can't even make, there's barely a chance to make it, have any evidence, right? Because what they'll ask for in those boiler plate requests for evidence will be, we'll show proof of the care of the mother to the doctors or the travel that came to the US, we'll show proof of the baptism, show proof of the whatever. And the other thing that I look for when I'm trying to get evidence is like, who else was attending at the birth? Is it a parent, a mom, aunt, whoever? We ask and we try to get more proof, but a lot of time, the longer person has to deal with this that hasn't dealt with it, when they get older and older, and usually the evidence and the witnesses start dying and the evidence gets stale and harder and harder to prove. So that's where you usually want to team 'em up with somebody who's worked on these types of cases and can be creative on finding more proof. And then the other red flag would be, if the birth was attended by a midwife previously accused of fraud or admitted fraud, and that's what I mentioned earlier. And like I said, it does not mean it's definitively mean that there's fraud. It just means that you're gonna have a huge red flag there, especially if the midwife lied and said that the child was born on the wrong side. What also happened for that case, the one where the midwife lied and said, "My client was born on the Mexican side," is that, luckily we were able to prove, well, not only was he born on the US side, but he would've been a citizen at birth through his mom because his mom was unwed, lived in the US one year, and at the time of his birth, he would've been a citizen, even if he was born on the Mexican side. So that really helped us as well. So anyway, I talked a lot about this but honestly, I've learned almost all of this through my cases, never see this talked about in CLE, so just wanted to bring this up. Now let's move on to other possibilities. So general eligibility for spouses of US citizens employed abroad. So this is under 319b, where this is a possibility to, so we're moving on to naturalization, continuing on with naturalization. And we've already talked about, you might be a citizen, maybe you are, maybe your citizenship is in question, maybe you don't have proof just of your citizenship, but now we're gonna move on to some more ways about naturalization. So if a spouse of a US citizen who is regularly stationed abroad in a qualifying employment may be eligible for naturalization on the basis of their marriage. If the spouse is otherwise eligible under this provision are exempt from the continuous residents and physical presence requirements for naturalization. So that's pretty nice. The spouse must establish that he or she needs the following criteria, so they have to be 18 or older at the time, a legal permit resident at the time of the naturalization, continued to be the spouse of the US citizen up until the time the applicant takes the Oath of Allegiance, married to US citizen spouse regularly stationed abroad, this is really important, qualifying employment for at least one year, has a good faith intent to reside abroad with the US citizen spouse upon naturalization, and to reside in the US immediately upon the citizen's spouse's termination of employment abroad. So they're gonna go live with the spouse upon the naturalization, become a citizen, and they're gonna reside with the US citizen spouse when they come back from that being stationed abroad. And I mean, this could be for various different types of positions from like missionaries to international trade type of positions and stuff like that, but you have to make sure you meet the qualifications. And we're just going over general things to consider, but do look into the divine details about this. You have to establish that the he or she will depart to join the citizen spouse within 30 to 45 days after the date of naturalization. So this can be a really great option because, like we mentioned, you can be exempt from continuous residence and physical presence requirements of naturalization. And I believe you can actually list the... Yeah, I believe you can actually list the field office that you want to be adjudicated by. And sometimes, there's a strategy into choosing one that's a little bit faster than others. You also want to make sure you have the understanding of basic English, including ability to read, write, and speak, knowledge of basic US history and government, good moral character for at least three years prior to filing the application until the time of naturalization attachment to the principles of constitution, well disposed to the good order and happiness of the United States during, okay. We know that type of stuff. The period of showing good moral character for spouses employed abroad is not specifically stated in the corresponding statute and regulation, but they're following the three-year rule. And their spouse is required to be present in the US after admission as the green card holder or his naturalization examination for taking the oath. So this is a great option especially for those who are following, trailing their spouse abroad, and don't want to lose their green card and want to be able to get their citizenship and have more of that flexibility. So I'm briefly gonna mention this because this can change depending on what's going on, but naturalization through military service is another option. So if you're serving or have served in the US Armed Forces and are interested in becoming a US citizen, you may be eligible to apply for naturalization under special provisions of an INA of either 328 or 329. You can apply under the one that applies to you. You don't have to pay for any filing fees as a current or former member of the US military. Certain other naturalization requirements may not apply to you so this can be pretty rapid in many cases. So because this can change, there's been times where people can just jump from basically having homeless, no status to being a citizen. Anyway, usually if you live in a place that has some military bases or you probably see a lot more of these than others, we don't have those in Houston, but we aren't too far from San Antonio where I spend a lot of time and just have a lot of military personnel. But there's a book called "Military and Immigration." Margaret Stock is a really great expert on these types of issues, but do do your research and make sure that you check into this. But I find that a lot of times, my clients don't need me to help them on this because they're guided by the Armed Forces military, and they're able to figure this out on their own with that guidance. And so I haven't had to facilitate a lot of these cases. okay, so now we're moving on. Exploring criminal matters and common challenges to good moral character. So the denial of a naturalization can most commonly occur when USCIS claim, it's discovered a ground of ineligibility, maybe we're talking about a lack of good moral character. So common grounds are denial or under the lack of good moral character, including, at some point, there was conviction of murder, aggravated felony, or during the statutory period of five years or three years, if we're using, based on marriage and living with a US citizen, proceeding the naturalization, following contact is considered crimes of moral turpitude, any crime against a person with intent to harm. And again, side note, there is not a technical definition or a listing of what CIMT's are, crimes of moral turpitude. But that is reinterpreted and comes out, varies based on case law. It's not like aggravated felonies that are clearly delineated in INA 101. And so, unfortunately, we have to keep reading the case law, double checking, where we are with the state that the crime was committed, the year it happened, and what the case law is saying. So moving on, fraudulent green card activity or false testimony for the purpose of obtaining an immigration benefit, violation of controlled substance drug laws, habitual drunkenness. Yeah, I mean, that actually can happen and there can be a lot of discretion there, but they see a lot of DWIs and things, gambling offenses, shoplifting or theft, prostitution, failing to pay court order, child support, or alimony, payments that's actually, that can surprise you, but that can be an issue. I mean, maybe to some people can surprise them, but this is a big thing about good moral character. And in fact, I mean, just like, if you don't pay your child support, they can take, I think, your passport away or US passport, they can make it difficult for you to get it renewed, and then failing to pay taxes. So taxes are really important and you wanna make sure that you pay them. And so you want to... We're gonna talk about that in a second, but you wanna make sure, or later on another slide, you wanna make sure that they're up to date. So any of these things, in fact, even if you read the regs, it even says like extra, yeah, okay, that's the next slide. There was even more things, failing to support dependents if you had an extra marital affair, which tend to destroy an existing marriage. I mean, that's sort of hard to prove, but I've never had a case that actually got denied because of that. But I think I've heard on some forums that they've seen that, failing to complete any probation, parole, or suspended since before applying for naturalization. Okay, so this is where it gets a little tricky, because sometimes, you wanna have all of that stuff taken care of before you apply. Sometimes you're thinking, well, just make sure it's all taken care of before you have the interview, but sometimes you can't control when the interview's gonna be. So a very conservative approach is making sure, like a super, super conservative approach is that, it's been five years since everything's been resolved or from when it happened, and it's been resolved since then. Some people just impatient, just wanna get going. And so honestly, this can really depend on your office that you're applying with, how strict they are about this. But that's why you really wanna check that. Now, if you've ever smuggled aliens in the United States, which sounds horrible and is horrible, but that can be another grounds for being denied, not registering with the US Selective Service System, well, between the ages 18 to 25 if you're a male, which is why you always need to double check that. Generally, if you didn't do it, and it's been five years since then, usually you have to get a letter that says that the failure to have registered and there's a process for that that you need to follow through. You just go to the selected service system, sss.gov. There's a way to double check if they're registered. Sometimes people register, they don't remember they registered, and anyway, so there's things to look at. And sometimes there's like males, I forgot like 1960 or something like that, they didn't even have to register. And so double check the year, but there's a period of time where they didn't even have to do it. Now, other things could be two or more of any crimes for which five or more years were spent in jail and/or jail time, the 180 days, or more during the past five years. I mean, so usually, you're looking at, maybe thinking about that petty offense exception on things, but like, I mean, you're getting over 180 days, or multiple crimes, then you really, of course, you always wanna analyze every single thing, but these are just some things to be looking for. Now, how do you prove good moral character? Well, you wanna show that to consider the totalitarian of circumstances, the way all the factors, favorable and unfavorable. But let's say that you get a denial and they say, "It's too recent for there's been a crime," or "Too recent you haven't paid for your dependents or something like that." Well, generally, you gotta look at it and say, "Do you wanna appeal that?" Or "Do you wanna just wait the five or three years and apply again, get that situation remedied and cleaned up?" So those are the things you look at when you do get a denial. But usually, we show the good moral character by just merely paying taxes, don't have any crimes, any other red flags. And we're usually pretty good on that. So totality of circumstance includes, but it's not limited, family ties and background, absence or presence of other criminal history, like I said, not having other ones, education and employment history. It's funny 'cause people are like, "Oh, do I have to have a job to apply for naturalization?" No, you don't, but I guess it could be considered something in the good moral character. But I mean, I've never ever seen that happen actually. So other law abiding behavior, including paying taxes, community involvement, which is they do ask you, "Are you involved in any community activities or membership of anything?" Credibility of the applicant, compliance with probation, and length of time in the United States. So all of these things can help establish good moral character. Now permanent to good moral character could absolutely prevent you. And so you want, these can be an absolute prevention of the criminal character and result in automatic denial. So you don't want to have these, but you need to double check if they have one of those. And one thing that can be really good to look through is the naturalization application and just really get to know it, and see some of the questions that they ask. Now, of course, there could be something that's off the form. Also reading the regs is very helpful. And the other thing is like, maybe there was something really, really horrible, sounds horrible, but it was a really long time ago, it was before IIRAIRA, and maybe it doesn't have the same consequences if it was after IIRAIRA. So you really have to double check every single thing and don't just assume 'cause it looks to be bad or it sounds bad that it's, I mean, we can't do that right anyway, but just reminding you. Make sure you cross your T's and dot your I's. And if you don't know, do some extra research, ask around, have mentors give you guidance. Okay, so let's move over to physical and continuous residence considerations and importance of travel history. So this is something that happens a lot especially when your clients like to travel a lot or you have some expat clients who weren't eligible to for naturalization already for some other reason. So when naturalizing the burden approved first upon the applicant, darn, right? To approve eligibility on every ground, chucks. Notably, including having to prove lawful admission of the permanent residence status. So USCIS must determine whether the status was lawfully obtained and not just whether it's in the possession of the card. So if the status was not lawfully obtained for any reason, the applicant's not lawfully admitted, is eligible for naturalization. But you gotta work, look at the law to make sure because it might just sound like it's all on their burden, but you gotta go the extra mile and double check everything here. So let's talk about that physical and continuous residence. So unless you meet one of those other exemptions that we talked about, you have to prove that if you're using the five-year rule, which most people are, you need to have been at least the majority, more than half of the time, by half, I mean, one day more than half of the time in the United States. So the way I like to say, this gets confusing. So I say, look behind your shoulder and say, "Have I been in the United States at least more than 2 1/2 years plus a day?" Which equates to, so we have 365 days times five equals 1,825, divide by two is 1,912 1/2. So let's just say 913 or 914. Have I been in the US 914 days in the last five years? And they don't have to be all continuous at the same time. It just has to be that much time. Now you also have to double check that they didn't leave the US for more than one entire year at one time. And ideally, they weren't gone for more than six months at a time, but that's another thing to consider. But when you're doing this math, this is what you're looking for, right? So as long as they were in the US 900, let's say, 914 days in the last five years and not gone for more than one entire year at a time, we're good. Of course, all things being equal, they meet all the other qualifications. Now, when we use three-year rule, which side note, sometimes you have the choice to use three-year or the five-year rule because they're still married to US citizen and they've had the green card five years, they would meet the three-year rule. So sometimes you get to decide, do you wanna use the three year or the five-year rule? And usually when you're doing that, you look into travel, and you're also look into good moral character. So sometimes, I've used the three-year rule when I could have used the five, just because I needed to be using the three-year rule for travel or a crime happened like four years ago, but I wanted to use the three-year rule for good moral character. So back to this. If you use the three-year rule, we're talking, you have to be in the US, like let's say 548 days in the last five, three years. So we get the math here as in this chart, 365 days times three is 1,095, divided by two, 547 1/2. And a lot of times, clients are like, "I don't care what you're saying." So I draw charts, yeah, I actually draw charts. I mean, because when the people who really need to know this are the ones who travel a lot, and they're the ones that were counting the days sometimes. And so that's why I have to do charts. If they've been only gone like a week, a month, or two months or whatever, I'm like, there's no need to explain this, right? So there's been times where I had a client come to me and say, "Okay, this is my travel." And I'm like, "Yeah, you need to come back to me about a year and then we can file." So I've done that multiple times where people, I tell them, come back in six months a year and don't travel too much. Now, one other thing, which is funny, I like to tell that to people, the other thing that's important to note is that, you need to qualify at the time, so we're talking about physical presence with these numbers. Continuous residence can be broken if you're gone for more than one entire year at a time, so 365 days all together. And so why this is important is because, then if you've been gone 365 days and you're using the five-year rule, you have to wait four years and a day before you can apply all things being equal you already qualify on other provisions, even if you had a reentry permit. Some people don't understand that. The difference between the physical and the continuous resident. If you're using the three-year rule, you have to wait two years and a day. So bottom line, you need to double check cumulatively how many days they were gone, and you also need to make sure that there wasn't one entire year break from the US. If there was, then it's gonna take longer. That could have happened a lot during COVID 'cause a lot of people were stuck outside of the US. Okay, so enough about travel. But I mean I've seen a lot of stuff on this section and you wanna have as much proof as possible. And I'll tell you one fast, crazy story. My associate went in one room, office interview, I went in another interview, couple had the exact identical travel, used reentry permits, and they also like, they were white, they called white passports and they had traveled so much. And one of us went in and our client got approved, and one of us went in and we got a request for evidence for a whole bunch of stuff. And when I went out to the parking lot and I realized that, I was like, wait a minute, we got two different answers for the same exact set of facts. We had different officers that they didn't double check. They weren't looking at these cases. That's why they don't do that necessarily. Anyway, we went back into the lobby and I asked to speak to the supervisor and I was like, "Hey, did you guys realize what you guys did? One of the guys you approved got a nasty RV?" And I mean, yeah, it was a little bit risky. We could have maybe gotten another RV, but I mean they approved one out. So in the end, they approved both of 'em on the spot, and so that was happy story. But it does prove that you could have different answers on the same set of the facts depending on the officer and the same field office. All right, so let's talk about money, taxes, child support, all that fun stuff, okay? You know how they ask like five different ways, like have you paid your taxes just like crimes? Well, they really care about it, right? So make sure that the person's paid their taxes, they're up to date, if they've done extension that that was done timely, and that if they have, owe any money that they have a payment plan that they can verify and show on the day of the interview. If they don't have a payment plan to show, they will get a request for evidence for one and that'll cause more delays. So make sure that you have that. And one of the other questions like, did you ever file as a non-resident? Just be aware of that sometimes people who are expats have other people file their taxes and they don't really aren't aware, but I mean, basically, you have to be careful about if you're telling IRS, "I'm not here that much, I'm trying to get the foreign tax exemption." But then you're telling USCIS, "Oh, I'm still here. I'm still maintaining my green card." So that could be problematic and you just want to make sure that everything's on the up and up and you wanna have as much proof as you can. If I don't already submit the three to five years of taxes or transcripts at the time of the application, I will have the client bring it to the interview to make sure. And also child support regularities, making sure that everything is paid or there's a payment plan at the time of the interview so that you have that taken care of. Now, into some more messier things as we're getting close to the conclusion, a false claims citizenship is a serious matter, especially after IIRAIRA. Before IIRAIRA, false claims citizenship was just considered a misrepresentation. But after that, it can be a permanent bar and there's some exceptions. So any alien who falsely represents or falsely represented himself or herself to be a citizen in the US for any purpose or benefit under this act is inadmissible. So if they're inadmissible, is barred from obtaining a green card, if married to US citizen, no waiver is available, no waiver, and as like I said, prior to 1996, false claims could be waived. Currently, for any claims made after September 26th, 1996, there's no waiver, but there are some exceptions. So while many people benefited from legislation, some mistakenly assumed they were citizens under Child Citizenship Act of 2000. And to deal with it, Congress included exception to the act preventing deportation of children who made false claims citizenship, and you know what? This happens, and back a decade ago, when DACA came out, I saw a lot of kids who thought they were citizens and so this happens, so here's exceptions. If the child's parents were US citizens by birth or naturalization, the child made the false claim when he or she was under 18, the child was a US permanent resident prior to age 16, and the child reasonably believed they were, making the false claim citizenship, the child reasonably believed that when making the false claim that he or she actually was a citizen. So I mean, to an attorney, to a judge, to an officer, we were probably very cynical about false claims citizenships, but there's lots of times when people are told that they're a citizen and they're not, and this can continue. So I hope you don't have to prove these exceptions because it can be very difficult, but this is some something to work with, and you want to really do your research and check into this as a possibility if necessary. Now, the other things to note is, if a naturalization application's been pending a long time, you can consider a writ of mandamus. And generally, just by a threaten to file it or filing it can make movement after an interview, 120 days after an interview, there's supposed to be movement, and so that gives you, but in some cases, you might not even have an interview. I had to file, I had to threaten to file a mandamus for somebody who had taken three years after an interview to try to get a decision and come to find out he was from a country that there was a lot of gangs. I don't remember the country at this moment, and there was like tattoos and gangs. And actually, I think a relative had maybe been involved in that, but he wasn't, and I don't think he even had any tattoos. So when I threatened to sue, they were like, "We can't find the file." And then like, they found the file. And they were like, "We can't find the file." Anyway, they find the file, they called him in for a second interview, and then they ask under oath all these questions about tattoos and gangs. And we're like, "What?" Anyway, they couldn't find anything. And then in the end, he got approved. But yeah, things are crazy sometimes. So an N-336 is what you can file, it has to be timely filed. If an N-400 is denied, you really wanna assess what about that denial before you file that appeal. It costs money. You don't wanna waste people's time and money, but that can be, if there was an error on USCIS part, then that's the right thing to go. DHS can stay in naturalization application pending removal or issue and deny naturalization on that basis. I think it really can depend on your jurisdiction field office. What if the NTA is issued, but not filed? Well, that gets really annoying. I've got a case like that right now. Oh, we're trying to, I think, we're gonna file an N-400 again, and you can try to work with cross control discretion potentially. Once the notice to appear is officially filed, what are your options? And I have a case like this too. I mean, you have to look to see whose burden it is and what the charge is, maybe a 237a1H would be good in court. I did do a case like this and what's was good about it was that, they were able to retain the date of the green card they originally got it as soon as they got approved, and the standards like, I think discretion actually, so this is a really nice waiver if you ever have to do it. It's basically that somehow you fraudulently got a green card and you shouldn't have gotten it, but here you go, you show the hardship and some discretion, it's really discretion, then you can go be behold again as of the date that you originally got it, and then you can go apply for naturalization. So you can also have federal court review of N-400 denials. And I haven't had this, but what if the NTA is issued after you're already in federal court? I mean, I think it depends on your facts, but there could be some movement with cross control discretion or something that can be worked out on that. But I think that that things can get a bit messy. So if you were in this space, you really wanna do your research, you wanna talk to other attorneys who've done these things as well, and you wanna be confident going in that you, whose burden it is moving forward. I actually have a case like one of this in court in just a few weeks, and so this is a good reminder as I'm going over all this material. So in conclusion, know your local office and partner with local counsel if necessary, especially if federal litigation or something that you might not have done before and you just need to get guidance, make sure the risks are clearly explained to the client in writing because there's a lot at risk, people not knowing whether they're going to become a citizen, they might lose their green card, whether they're not really a citizen, that's horrible to find out that you weren't a citizen, you thought you were one, or the upside is when you actually get to tell somebody they're a citizen and they never knew. So we are at the conclusion of this CLE, complex naturalization and citizenship cases and how to get your clients to citizenship. And so you can reach out to me if you would like to. I'm with Powers Law Group, my name's Ruby Powers, and you can find me on LinkedIn. And if you have any questions or want to stay connected for immigration or law practice management, et cetera. So I hope you enjoy today's CLE and you learned a few things that help you with your cases. And I wish you all the best on your journey of navigating immigration law. Thank you so much.

Presenter(s)

RP
Ruby Powers
Founding Attorney
Powers Law Group

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                                                                                            Credits
                                                                                              Available until
                                                                                              Status
                                                                                              Not Offered

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