USCIS recently revised their Policy Manual on Naturalization to further address the legal effect of absences outside the US. This guidance particularly affects green card holders who have traveled outside the United States for more than one year and who are now applying for citizenship. The government's Policy Alert reminds the public that absences outside the US for one year or more automatically breaks the continuity of residence, one of the fundamental requirements for citizenship. This is true even if the individual possesses a re-entry permit, since the permit only preserves the individual's permanent residence (in general, a green card holder who travels outside the US for one year or more, uninterrupted during a single trip, will be deemed to have abandoned his/her residence here.) If such an individual wishes to apply for naturalization, he/she must wait a minimum of at least 4 years and 1 day.
As we discussed last week, the Department of State took swift action to implement its own Final Rule on Public Charge Inadmissibility. Since February 24, 2020, all consular immigrant visa cases are now subject to the new guidelines, the intent of which are to essentially deny admission to individuals who are likely to become dependent on the government for assistance. Going forward, applicants will now to have complete the DS-5540 as part of the immigrant visa process. On that form, the applicant must disclose his/her household size; assets; debts/liabilities; and education/skills, among other things. In addition, applicants should be prepared to furnish supporting documentation including but not limited to proof of health insurance and tax return transcripts if the applicant filed taxes in the US. (If a family unit is applying together, only one DS-5540 is required.)
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.
A deeply jarring decision from the Board of Immigration Appeals came out late last month pertaining to the issue of false claims to US Citizenship. Under Section 237(a)(3)(D)(i) of the Immigration and Nationality Act, "an alien who falsely represents, or has falsely represented himself to be a citizen of the United States for any purpose or benefit under this Act (including section 274A) or any Federal or State law is deportable." What makes this case, Matter of Zhang, 27 I & N Dec. 569 (BIA 2019), interesting is that the Board held that a false claim need not necessarily be made knowingly in order to render an individual deportable. Here, Mr. Zhang purchased a naturalization certificate without having undergone the examination, and it was questionable as to whether he knowingly or unknowingly tried to circumvent the process. On appeal, Mr. Zhang maintained that he in good faith believed that he was a US citizen and argued that the government bore the burden of demonstrating that he made the false claim willfully or knowingly.
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:
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:
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.
Every year there is a Presidential election, USCIS generally experiences a surge in N-400 applications for naturalization. 2016 will likely prove no different. If anything, there may be unprecedented numbers of lawful permanent residents applying to become US Citizens, especially given what is at stake for our country. For some, the prospect of Republican candidate Donald Trump in office has stirred up fears of anti-immigrant sentiment, increased enforcement and a moratorium on immigration. Others are motivated by the perennial, unfounded rumor that is easier to become a citizen during an election year. Whatever a person's reasons, there are certain deadlines that one needs to be mindful of if he/she wishes to vote this year. In New Jersey specifically: