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Five Year “Garcia” Rule and Applying for Citizenship in New Jersey

| Jul 13, 2016 | Citizenship and Naturalization, Immigration Court Cases, Opinion |

Following up on the heels of our last post, the Third Circuit of Appeals issued two precedential decisions affirming a denial of US citizenship to two different parties who had acquired their permanent residency through false statements or fraud. The two cases were decided by two different panels but interestingly, arrived at the same conclusion. The two cases are Saliba v. Attorney General and Koszelnik v. Secretary of Homeland Security. Although the facts are different, the gist of both cases is that the immigrants in question secured their green cards by affirmatively providing false information on their permanent resident applications. One party represented that he was a citizen of Lebanon when he wasn’t, and the other omitted the fact that he had an A number and had actually been in court proceedings when applying for their green cards. Both gentlemen’s lies were not caught at the green card stage and they subsequently applied for naturalization more than five years later. In both cases, the Court denied their petitions, predicating their decisions largely on the notion that even though the applicants were permanent residents, they were nevertheless not “lawfully admitted” as permanent residents, as required by 8 U.S.C. 1429.

Given the ramifications, these binding decisions are very important to immigrants in New Jersey, as well as those states within the Third Circuit. There are numerous people who may have become permanent residents through fraud or mistake still yearning to become US citizens but hesitant to try. Worse, there are those who have already applied (who should not have) that have now jeopardized their status. These cases reinforce the critical distinction between being protected from revocation/rescission and qualifying for naturalization. Notwithstanding that the government may not seek to revoke a person’s green card after the statute of limitations has passed, permanent residents should disabuse themselves of the notion that they are entitled to or automatically qualify for naturalization-at least in the Third Circuit. The Court pretty much dismantled the sundry arguments propounded by counsel including:

  • The expiration of the statute of limitations transformed admission from unlawful to lawful
  • Equity
  • The government implicitly waived any grounds of inadmissibility

As the Court remarked, issues of removal, rescission, and naturalization are raise different legal questions.

A careful reading of the questions on the N-400 application should certainly give one pause, especially if one has procured his/her green card through fraud or misrepresentation. The way that some of the questions are phrased practically invite trouble if the circumstances behind one’s green card are suspect–which again, should prod prudent people to consult with attorneys to determine if citizenship is viable. Now that judicial redress seems closed, one can only hope for an administrative measure one day (and that day may be far off) that salvages people from the limbo they find themselves in.

The above is general information/opinion and should not be taken or relied upon as legal advice. It is neither intended to create an attorney-client relationship nor substitute for legal counsel.

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