QUESTION: I am being placed into Removal Proceedings. Can I be deported? I have had my Green Card for years.
Answer: As long as you are not a US Citizen, you could be detained and removed from the US for many types of crimes. Since the passage of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), whether an alien physically present in the United States is removable under the inadmissibility or deportation grounds is determined in removal proceedings
Prior to IIRIRA’s April 1, 1997, effective date, inadmissibility was determined in exclusion proceedings and deportability was determined in deportation proceedings. Persons placed in exclusion or deportation proceedings prior to April 1, 1997, will continue to have their cases adjudicated under the pre-April 1, 1997, law, unless US Immigration and Customs Enforcement (ICE) takes special steps to terminate the exclusion or deportation proceedings and recharge the person under removal proceedings.
Question: How can I challenge this?
Answer: The first question to ask in challenging removability is whether the respondent may be a US citizen. US citizens are of course not subject to removal, and a person might be a citizen without knowing it. A person can either acquire or derive citizenship. Bear in mind that the client’s parent himself or herself may have obtained citizenship through a US citizen parent, so that neither the client nor his or her parent may realize that the client is a citizen. This means that it may be necessary to go back one or more generations to determine whether the client is a citizen explains Brian D. Lerner, Long Beach deportation attorney.
Normally the issue can be raised affirmatively, through a motion to terminate removal proceedings, or by arguing that the government has not met its burden of proof with respect to alienage. If a respondent has not been admitted or is charged as being present in the United States without being admitted or paroled, it is the government’s burden to establish alienage. Thus, one of the questions he always asks is whether the person’s parents or any of the grandparents were born in the US.
However, evidence of foreign birth gives rise to a rebuttable presumption that a respondent is an alien. However, keep in mind that a rebuttable presumption is just that. It can be rebutted with evidence. If evidence of foreign birth is entered into the record, the burden of proof shifts back to the respondent to establish that he or she is a US citizen by a preponderance of credible evidence. While an Immigration Judge is not permitted to declare an individual a citizen, he or she must terminate proceedings if ICE cannot meet its initial burden of establishing alienage by proof of foreign birth or if the respondent has established a claim to US citizenship by a preponderance of credible evidence.
Question: Does this mean that if the Immigration Judge terminates proceedings that I have nothing to worry about?
Answer: No. Even though DHS may suggest that the IJ administratively close proceedings, you should be allowed then to file a form N-600 (certificate of citizenship) with US Citizenship and Immigration Services (USCIS). Keep in mind that if the Immigration Judge terminates proceedings that does not automatically mean you are will be considered to be a US Citizen. You should apply for a US Passport and/or Certificate of Citizenship.
There is what is known as acquisition of citizenship. A person may have acquired US citizenship either by birth in the United States or by birth abroad if at least one US citizen parent meets the relevant requirements of residence in the United States. The law governing how long a citizen must have resided in the United States in order to convey citizenship to a child born abroad has changed over the years. Thus, the length of time the parent must have lived in the United States before his or her child born abroad will acquire citizenship depends on the law in effect at the date of the child’s birth. For example, for children born on or after November 14, 1986, to one US citizen and one noncitizen parent, the citizen parent must have been physically present in the United States or its possessions for at least five years prior to the child’s birth, two of which must have been after the parent turned 14 years of age. Unlike many other areas of law, acquisition of citizenship is ever changing and must be analyzed accordingly.
* * *
Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
