Citizenship: The Ultimate Defense

Many persons do not realize that their parents' naturalization may affect their status after they have received their green card. Their parent's naturalization can result in their automatically becoming United States Citizens.

In the case of persons who have committed an aggravated felony where the individual otherwise has no defense from removal or deportation, the fact they have already become a U.S. Citizen can save their case. This issue becomes even more acute for persons who became legal permanent residents through their parent's immigrant visa petition. This is because certain waivers for removable offenses are available to aliens without status that are not available to legal permanent residents. In the Ninth Circuit, Federal courts have held persons are more culpable for conduct that is a removable defense once they have shouldered the responsibility of becoming a legal permanent resident.

What many legal permanent residents who have family do not realize is that they may already be a United States citizen based on the fact that their parents naturalized prior to them becoming 16 years of age.

This was vividly illustrated in a stunning case has come down from the 2nd District Federal Criminal Courts in New York State. There Judge Lawrence Kahn determined that an individual Duarnis Saul Perez who was born in the Dominican Republic had been wrongfully deported from the United States and wrongfully imprisoned for returning to the U.S.

Duarnis Saul Perez was born in the Dominican Republic and legally immigrated to the United States as a child. In 1988 his mother became a naturalized U.S. citizen, and by operation of law, Duarnis did too. But he didn't realize the significance of his mother's naturalization. This is due in part to the fact that the United States Government makes no effort to inform sons and daughters of a United States Citizen of their new status. So, following a drug conviction, Perez was deported as an #aggravated felon.# He was then prosecuted for illegal re-entry, and sentenced and served nearly five years (57 months) in prison. (See Perez v. United States, 1:05-cv-1294, New York Northern District).

What Perez, and at the time of his original deportation, his immigration attorneys did not realize was that when Perez's mother received citizenship he also became a U.S. citizen under 8 U.S.C. §1432. This provides that a child born outside the United States automatically became a citizen when the following three conditions were present: (1) at least one parent of the child is or became a United States Citizen; (2) the child was under sixteen years of age; (3) the child was lawfully residing in the United States. At the time his mother received citizenship, Perez was fifteen years old and was legally residing in the United States. He automatically became a United States citizen on April 13, 1988 and never should have been removed.

August 15, 2006 decision of Judge Lawrence E. Kahn heavily criticized the effort of USCIS and the U.S. Attorney's office to deny a United States citizen the privilege to reenter and remain in the United States, and convicting him for doing so was “repugnant to the (U.S.) Constitution.”

Issues such as automatically acquired citizenship underscore the importance of a careful and thorough analysis of the immigration history of a client and their family members, especially parents. No individual should suffer through deportation proceedings and prison because their attorney has overlooked an important issue such as naturalization through parents.

More importantly you do not have to wait for something bad to happen to assert your claim to citizenship. If you believe you have acquired citizenship through a parent that naturalized, through adoption by U.S. Citizen parents or other means it is important that you use certified legal counsel to assert your claim to citizenship.

Robert J. DuPont is the founding attorney for The Law Offices of Robert J. DuPont. Mr. DuPont graduated from Yale University and USC Law School. He is admitted to the California Supreme Court, Federal District Courts in the Central and Northern Districts of California, as well as the 9th Circuit Court of Appeals. Mr. DuPont has been a speaker at ILW, a leading immigration law publisher. He was the founder of the Immigration Law Committee with the Beverly Hills Bar Association. Mr. DuPont has risen to prominence with over a decade’s practice in the field of immigration law. He has brought cases to their successful conclusion before the EOIR, BIA, AAO, Federal District Court and 9th Circuit Court of Appeals.

A similar version of this article may have been published in the Asian Journal.