Late last year, USCIS adopted two significant policy changes pertaining to Good Moral Character for naturalization petitions. (Every applicant must demonstrate Good Moral Character in order to become a US Citizen.) The first one, which we previously covered, pertained to drunk driving convictions and how two or more convictions raised a rebuttable presumption against a finding of good moral character. The second change is equally troubling and concerns unlawful bad acts which can militate against and render someone ineligible to naturalize. In its new policy guidance, the agency has gone ahead and fleshed out examples recognized by caselaw that can constitute a disqualifying "unlawful act." Some of them include but are not limited to:
Not too long ago, Attorney General Bill Barr issued an important decision regarding good moral character determinations within the context of cancellation of removal. Under Matter of Castillo-Perez, the Attorney General held that two or more drunk driving convictions create a rebuttable presumption that an applicant does not possess good moral character. USCIS has now officially adopted and incorporated this principle into its own Policy Manual, specifically Volume 12 which pertains to Naturalization matters. According to the USCIS Policy Alert, the new policy regarding DUI good moral character determinations will apply to any cases filed or pending on or after October 25, 2019.
One of the most common questions that our citizenship clients ask is whether there are any travel prohibitions after they have filed for naturalization. At the risk of oversimplifying matters, the short answer is that applicants are allowed to travel outside the US even after their N-400 applications are lodged. That being said, individuals need to remain cognizant of the eligibility requirements for naturalization, some of which extend up and through to the time of the interview. In some cases, conduct after an application is filed can seriously impact the application and ultimately form the basis of a denial. When it comes to international travel, remember that an applicant must not only satisfy the physical presence requirement, but also the continuous residence requirement.
During his administration, President Trump has repeatedly proclaimed his intentions on ending birthright or automatic citizenship for those born within the United States. To be clear, birthright citizenship is still intact, but the latest USCIS policy memo pertaining to residency for citizenship arguably represents an encroachment. Policy Memo PA-2019-05, issued on August 28 of this year, received much attention in the media regarding changes to the way USCIS will now adjudicate citizenship petitions for children of US government employees and armed forces members. Under the new policy, as elaborated in the memo, children of US government employees and armed forces members residing outside the United States will no longer be considers "residing in the United States" for purposes of citizenship applications filed under section 320 of the Immigration and Nationality Act. Section 320 is a part of the law that grants citizenship to certain children under the age of 18 who did not acquire citizenship at birth but who are residing in the legal and physical custody of a citizen parent pursuant to a lawful admission for permanent residence. (In these cases, the child applies for a Certificate of Citizenship, as opposed to filing to become a citizen through the naturalization process.) The upshot of the new rules, effective October 29, 2019, is that these children born abroad must now pursue applications for citizenship under a different section, notably section 322, which is more cumbersome and requires the child to complete the naturalization process before the age of 18. Because this is an extremely complex area, some news outlets may have exaggerated and oversimplified its impact, though there is no dispute amongst most immigration attorneys that the new guidance discriminates against armed forces families and threatens to damage morale.
Green Card holders interested in becoming United States Citizens should be aware that USCIS is planning on revising the civics test as part of a new decennial review and revision process. Under this plan, the citizenship test will be reviewed every ten years and if necessary, revised to ensure accuracy, timeliness, as well integrity. The test was last revised in 2009.
The vast majority of lawful permanent residents aspiring to become United States Citizens will need to undergo the naturalization process. But in some cases, an individual may already be a citizen through application of the law pertaining to either automatic acquisition or derivation. In those instances, a person will need to apply for proof of citizenship by either applying for a US Passport or a Certificate of Citizenship via Form N-600. Unfortunately, the law regarding acquisition of citizenship can be incredibly complex. Depending on when certain conditions are/were fulfilled will determine which set of rules apply. A recent Third Circuit case, Dessouki v. Attorney General, illustrates just how fact-sensitive some of these determinations can be.
In recent years, many of the most commonly filed immigration forms underwent substantial revisions. These include the I-130 Petition for Alien Relative; I-129F Petition for Fiance; I-485 Application to Adjust Status; and N-400, Application for Naturalization. Rather than simplifying what is often an arcane process, the forms arguably obfuscate and complicate things even more. Soon, it is very likely that the N-400 will be changing again. Unfortunately, some of the proposed revisions and requirements will make the process more onerous and confusing, especially to a layperson who might be attempting to file pro-se.
In yet another ominous sign of the erosion of judicial independence, Acting Attorney General Matthew Whitaker recently certified a case to himself that may have a significant impact on foreign nationals charged with Drunk Driving or Driving Under The Influence. The case is Matter of Castillo-Perez, and this case is particularly important given the issues that the Attorney General will be deciding-possibly overruling previous BIA precedent. According to the certification, the Attorney General is directing the parties to address the following questions:
USCIS recently clarified that lawful permanent residents applying to naturalize on the basis of marriage to a US Citizen must not only demonstrate "living in marital union" with their spouse three years immediately prior to filing, but also that termination of the marriage at any time prior to the Oath of Allegiance renders an applicant ineligible under section INA 319(a). We have seen this second provision being strictly applied to deny naturalizations applications where the applicant divorces after passing the examination but prior to the oath ceremony. Practically speaking, this may not affect residents in states that administer the oath the same day as the interview, such as New Jersey. In general, however, most states regularly schedule the oath ceremony many months after the applicant has passed the examination. This gap can, in some cases, be quite long, especially if background checks are being conducted, an officer needs to look into something, or on occasion, neglects to finish reviewing the file. In the interim, an applicant's marital situation may rapidly deteriorate and the couple may seek a quick dissolution. Unfortunately, if this occurs prior to the oath, the applicant has technically fallen outside the boundaries of INA 319, the section of the law that allows green card holders to apply after only three years marriage to a US Citizen (versus the normal requirement of five years permanent residence prior to becoming eligible). This is one reason why applicants are expected to review and complete a questionnaire on the day of the oath verifying that certain information has not changed, ie., address; arrests; trips outside the US; and in this case, marital status.
On October 3, 2018, USCIS issued a public bulletin regarding the incorporation of digital tablets into the naturalization reading and writing process. Our office began seeing implementation of tablets a few months back, and this announcement not only confirms that this practice is here to stay but that technology will assume an even greater role in the process than ever before. Previously, citizen applicants were asked to review and digitally sign their applications on iPad or ipad-like devices. Now under this expansion, the use of pen and paper is essentially being phased out and discontinued. Pen and paper may be used "on a case-by-case basis," but by and large, both the reading and writing components of the N-400 examination will now be conducted on digital tablets: