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Supreme Court’s Heightened Standard For Revoking Naturalization Should Apply To All Immigration Benefits

Form N-400, Application for Naturalization, asks broadly “Have you EVER committed a crime or offense for which you have not been arrested?” One would be hard pressed to find a person who has never committed an offense for which she has not been arrested. Multitudes of New Yorkers must have committed the offense of jay walking with full sight of a police officer who never bothered citing the offender. Another broad question is “Have you EVER been a member of, involved in, or in any way associated with, any organization, association, fund, foundation, party, club, society, or similar group in the United States or in any other location in the world?”  It would be difficult for an applicant to answer this question accurately or remember every instance of membership in his or her life. For instance, does the applicant need to include membership in a school club in 8th grade? Until recently, an inaccurate but immaterial response to these two questions could have resulted in both criminal liability and revocation of naturalization.

On June 22, 2017, in Maslenjak v. United States,  the U.S. Supreme Court ruled on the issue of when a lie during the naturalization process may lead to loss of U.S. citizenship under 18 USC 1425(a). Divna Maslenjak, an ethnic Serb, lied during her naturalization process about her husband’s service as an officer in the Bosnian Serb Army. When this was discovered, the government charged her with knowingly procuring her naturalization contrary to law because she knowingly made a false statement under oath in a naturalization proceeding. A district court said that to secure a conviction, the government need not prove that her false statements were material to, or influenced, the decision to approve her citizenship application.

The U.S. Court of Appeals for the Sixth Circuit had affirmed the conviction, but the Supreme Court noted that the law demands “a causal or means-end connection between a legal violation and naturalization.” The Supreme Court said that to decide whether a defendant acquired citizenship by means of a lie, “a jury must evaluate how knowledge of the real facts would have affected a reasonable government official properly applying naturalization law.” The Supreme Court therefore said that the jury instructions in this case were in error, vacated the judgment of the Court of Appeals, and remanded the case for further proceedings.

This ruling is significant. It prohibits a government official from revoking a naturalized American’s citizenship based on an insignificant omission or misrepresentation. If the applicant did not indicate that she was a member of her school club to the question on the naturalization application asking about membership in any club at anytime and anywhere in the world, a vindictive prosecutor can no longer use this as a basis to indict her under 18 USC 1425(a), seek a conviction and then revoke her citizenship.

What is even more significant is that the Supreme Court sets a higher standard for demonstrating a connection between the violation and naturalization under 18 USC 1425(a) than the earlier standard of determining materiality under 8 USC 1451(a), the civil revocation statute, and elaborated at length in Kungys v. United States.  At issue in Kungys v. United States was whether the failure to indicate the correct date and place of birth was material to justify the revocation of Kugys’s citizenship under the civil provision. Justice Scalia writing for the majority held that the test of whether Kungys’ concealments or misrepresentations were material is whether they had a natural tendency to influence the decisions of the former Immigration and Naturalization Service. The formulation in Kungys v. United States has been adopted in the State Department’s Foreign Affairs Manual to determine whether a visa applicant made a material misrepresentation that would render him or her ineligible for fraud or misrepresentation under INA 212(a)(6)(C)(i):

The word “tends” as used in “tended to cut off a line of inquiry” means that the misrepresentation must be of such a nature as to be reasonably expected to foreclose certain information from your knowledge. It does not mean that the misrepresentation must have been successful in foreclosing further investigation by you in order to be deemed material; it means only that the misrepresentation must reasonably have had the capacity of foreclosing further investigation.

See 9 FAM 40.63 N6.3-1

In Maslenjak v. United States, the Supreme Court built on the formulation in Kungys to create a heightened standard for the government to prove that a person committed a crime pursuant to 18 U.S.C. 1425(a), which provides: “knowingly procures or attempts to procure, contrary to law, the naturalization of any person, or documentary or other evidence of naturalization or of citizenship.” Justice Kagan developed the following standard:

[T]he Government must make a two-part showing to meet its burden. As an initial matter, the Government has to prove that the misrepresented fact was sufficiently relevant to one or another naturalization criterion that it would have prompted reasonable officials, “seeking only evidence concerning citizenship qualifications,” to undertake further investigation [citation omitted]. If that much is true, the inquiry turns to the prospect that such an investigation would have borne disqualifying fruit.

As to the second link in the casual chain, the Government need not show definitively that its investigation would have unearthed a disqualifying fact (though, of course, it may). Rather, the Government need only establish that the investigation “would predictably have disclosed” some legal disqualification (citation omitted).   If that is so, the defendant’s misrepresentation contributed to the citizenship award in the way we think §1425(a) requires.

Justice Kagan’s opinion went on to state that “[e]ven when the Government can make its two-part showing, however, the defendant may be able to overcome it. §1425(a) is not a tool for denaturalizing people who, the available evidence indicates, were actually qualified for the citizenship they obtained.”

Justice Gorsuch with whom Justice Thomas joined, issued a concurring opinion stating that there was no need for the Supreme Court to create a new formulation, and that the Court of Appeals could do just that.  “This Court often speaks most wisely when it speaks last, ” according to Justice Gorsuch.  In a separate concurring opinion, Justice Alito suggested that the formulation in Kungys v. United States should apply equally to §1425(a).  According to Justice Alito, “§1425(a) does not require proof that a false statement actually had some effect on the naturalization decision.” But this is pivotal to Justice Kagan’s new formulation. The illegal act must have somehow contributed to obtaining citizenship. Take Justice Kagan’s example of John obtaining a painting illegally. This would connote that John stole the painting from the museum or impersonated the true buyer when the auction house delivered it. But if John did something illegal on his way to buy the painting legally, such as excessively violating the speed limit or purchasing an illegal weapon, those acts did not contribute to obtaining the painting illegally. Justice Alito would see it differently. A runner who holds the world record wants to ensure that she gets the gold medal at the Olympics, and takes a performance enhancing drug. She wins the race and is disqualified. The second-place time is slow and sportswriters speculate that she would have come first anyway even without taking the drug. According to Justice Alito, she cannot argue that her illegal act of taking drugs did not make a difference and was not material to her performance in the race.

Justice Kagan’s logic should have more force over Justice Alito’s. A naturalization applicant who stole bread when he was desperately hungry, but was never arrested and does not answer “Yes” to the question of whether he had ever committed a crime for which he was never arrested, should not have his citizenship revoked. First, determining whether a criminal defendant has committed a crime is based on the applicable law where the alleged conduct occurred and whether a prosecutor was able to prove beyond reasonable doubt that the defendant met all the elements of the offense. If the applicable law provides defenses, such as the doctrine of necessity, then no crime would have occurred. This defense too – that the defendant stole bread to avoid death through starvation – also has to be established within the penal system.  It would not be appropriate for an applicant to judge himself guilty on an immigration form – or for his immigration lawyer to condemn him for theft. Even with respect to making an admission, the Board of Immigration Appeals (“BIA”) has established stringent requirements for a validly obtained admission: (1) the admitted conduct must constitute the essential elements of a crime in the jurisdiction in which it occurred; (2) the applicant must have been provided with the definition and essential elements of the crime in understandable terms prior to making the admission; and (3) the admission must have been made voluntarily. See Matter of K-, 7 I&N Dec. 594 (BIA 1957). It would be very difficult for an applicant to satisfy the requirements of an admission while completing the form.  Justice Kagan’s heightened standard to demonstrate materiality should not just apply to 18 USC §1425(a), but ought to also apply to 8 USC §1451(a) cases as well as cases involving willful misrepresentation under INA §212(a)(6)(C)(i). The following words of Justice Kagan’s in Maslenjak v. United States are prescient:

Under the Government’s view, a prosecutor could scour her paperwork and bring a §1425(a) charge on that meager basis, even many years after she became a citizen.  That would give prosecutors nearly limitless leverage – and afford newly naturalized American precious little security.

The need for a uniform heightened standard becomes even more urgent in light of questions in immigration forms becoming increasingly broad and ambiguous.   For example, the latest Form I-485 asks whether an applicant intends to “engage in any activity that would endanger the welfare, safety or security of the United States.”  The next question in Form I-485 asks whether the applicant intends to “engage in any other unlawful activity?”  If the applicant answered “No” to the latter question and was later found to have engaged in an unlawful activity that would have no bearing on either the procurement of the green card or on the naturalization, such as participating in a peaceful protest that resulted in an unlawful road blockage, a vindictive prosecutor could still potentially use this to revoke either permanent residence or citizenship. This would not be a just outcome. A lie told out of embarrassment, fear, a desire for privacy or lack of comprehension of the question asked – which is not relevant to naturalization, the green card or a visa –  should never result in revocation.

USA v. OLIVAR: Conspiracy To Commit Criminal Acts Prior To Naturalization Can Still Result In Revocation Of Citizenship

One of the advantages of becoming a US citizen is that one is no longer susceptible to being deported from the United States, especially if the person has been convicted of a crime. While being convicted of a crime results in criminal penalties, a US citizen can at least take comfort that that there will be no removal, and the United States will continue to remain home for the convicted person.

Think again.

In United States of America v. Olivar, the Ninth Circuit Court of Appeals on April 18, 2016 upheld the revocation of citizenship of a naturalized person who was convicted of criminal conspiracy for acts undertaken prior to applying for naturalization.  Olivar, a native of the Philippines,  was naturalized as a US citizen in May 2002. In the same year, according to a Law360 story, Olivar began working at a law firm in the Los Angeles area in 2002. Seven years later, in early 2009, he was indicted on conspiracy charges in connection with a visa fraud scheme. Olivar and a second invidual recruited  people who were not authorized to work in the U.S., charging them anywhere between $1,000 and $7,500 to find a business that would sponsor them for an employment-based immigrant visa. They filed applications with the Labor Department and immigration authorities claiming the individuals would be working in skilled positions, like accountants or public relations specialists, according to Law360. The businesses allegedly never actually intended to employ the individuals, the prosecutors alleged. Olivar was also accused of helping the immigrants falsify their education and work experience if they didn’t meet the requirements for the H-1B visa, by using false diplomas, transcripts and reference letters. Olivar eventually pled guilty to conspiracy to commit visa fraud in April 2009 in violation of 18 USC 2, 371 and 1546 and was sentenced to just over one year in jail. Federal authorities later started efforts to revoke his citizenship, claiming he lacked good moral character in the five year period leading up to naturalization in May 2002 based on unlawful acts that adversely reflected upon his good moral character. These acts involved a conspiracy to commit visa fraud, which was a crime involving moral turpitude.

While this sounds Kafkaesque, it is possible to lose the coveted US citizenship if a person is convicted of a crime, based on conduct that occurred prior to naturalization. While a person only knows for certain about the crime being committed at the point of conviction, prior acts, or even an agreement to commit acts in the future, can potentially lead a court to conclude retroactively that acts prior to conviction adversely reflected on the person’s good moral character.

The Form N-400, Application for Naturalization, asks broadly “Have you ever committed a crime or offense for which you have never been arrested?” In a prior blog,  “Crime Without Punishment: Have You Ever Committed A Crime For Which You Have Not Been Arrested?” this author puzzled on how an immigration attorney should advise a client to answer this overbroad question. It is impossible to know whether a person has committed a crime or offense, unless it is proven beyond reasonable doubt in the criminal justice system. It may thus be problematic to advise a client to admit to a commission of a crime on the N-400 application when one does not know what provision of the law was violated, and whether the applicant met all the elements of that offense. Since this overbroad question also requires admitting non-criminal offenses, it would be difficult, and frankly ridiculous,  to plumb through the memory of the client to recall every minor offense that may have been committed in this person’s life, which may include such insignificant offenses as jay walking  (a daily occurrence in New York City!) or driving above the speed limit.  Nevertheless, failure to disclose whether a person has committed a crime for which there was no charge or arrest can be used against the person if there is a conviction after the naturalization. In U.S. v. Bogacki, for example, the defendant was convicted for conspiracy to bring in and harbor aliens, make false statements, commit mail fraud and wire fraud, and fraud by misuse of immigration documents, among others, after he had naturalized. However, the government was successful in denaturalizing him for his failure to specifically mention the question about committing a crime for which you have not been arrested on the N-400 application.

In USA v. Olivar, the Ninth Circuit Court of Appeals avoided relying on this ambiguous question on the N-400 application, and instead found that he lacked good moral character during the five year period preceding his naturalization. According to the Court, “The district court made clear that the Appellant was denaturalized because he lacked good moral character during the statutory period, and did not find that Olivar should be denaturalized because he made a material misrepresentation on his naturalization form.”  What is unusual about USA v. Olivar is that he had only agreed to commit a criminal act in the future, and the essential element of conspiracy, the overt act, only occurred after his naturalization. Was Olivar a criminal during the five year period prior to his naturalization, and thus lacking in good moral character? The following extract from the Law360 story is worth noting:

During oral arguments earlier this month, his attorney, Nimrod Haim Aviad of Crowell & Moring LLP, acknowledged that authorities alleged the conspirators began discussing the visa scheme back in 2001, several months before Olivar became a citizen.

But Aviad said no one acted on the plan until after Olivar’s naturalization. So, when Olivar was sworn in as a U.S. citizen, he was not a criminal and had not committed an illegal act, Aviad argued.

“When I agree to commit an act, that does not mean that I committed it,” he said. “That is the very basic principle that underlies the law of conspiracy.”

Judges appeared to be skeptical of the argument.

“So somebody could decide to engage in four or five illegal conspiracies to smuggle drugs, smuggle aliens, do a whole bunch of stuff, and say ‘but hold off, I’m going to become a citizen next week and then we’ll start buying the guns?’” Circuit Judge Susan P. Graber asked. “And that’s okay?”

As a result of his conviction in 2009, Olivar is no longer a US citizen based on an agreement prior to his naturalization to commit criminal acts in the future, and is potentially deportable. His case is especially striking since conspiracy, in addition to proving that two or more people two or more people were in agreement to commit a crime,   also requires an “overt act” taken in furtherance of the crime.  In USA v. Olivar, the applicant could not have been accused of conspiracy during the statutory period requiring good moral character prior to naturalization as the overt act had occurred long after he had become a citizen.  This appears to be a case of first impression, and the Ninth Circuit’s conclusion seems to be at odds with the law of conspiracy. Even with respect to decisions involving deportation, the only relevant decision involving deportation as a result of conspiracy that this author found (with David Isaacson’s assistance) is Matter of T-, 2 I&N Dec. 95 (1944). In Matter of T, the respondent was found not to be deportable for a crime involving moral turpitude committed within 5 years after entry as the overt act in that conspiracy occurred prior to his entry into the United States. The respondent, however, was still found deportable for having admitted to the commission of a crime involving moral turpitude prior to this entry, but it is significant that the charge of deportability for the commission of a crime after entry was not sustained as the overt act took place prior to entry. Because the Ninth Circuit’s decision in USA v. Olivar does not appear to be crystal clear, this is not going to be the last word on whether citizenship can be revoked based on an agreement to commit a crime prior to naturalization, but where the overt act occurred after naturalization.

The Impact of Obamacare on Green Card Holders Who Reside Outside the United States

By Gary Endelman and Cyrus D. Mehta

Unlike many, if not most countries, the long reach of Uncle Sam’s tax laws extend far beyond geographic boundaries to affect citizens and lawful permanent residents (LPR) on an extraterritorial basis. Status not physical presence triggers the tax obligation. The need for LPRs living abroad to comply with US tax regimes is another example of how,  since enactment of the Immigration Reform and Control Act of 1986, immigration has become increasingly and inextricably intertwined with all other aspects of American life and law. Beyond that, lawful permanent residence is not only a legal status but an economic one as well with tax implications that intimately affect the maintenance of such status and the fiscal consequences of its continued exercise. The impact of the individual health care mandate under the Affordable Care Act (ACA), also popularly known as Obamacare, upon LPRs who reside overseas is the most recent example of a growing tension between a domestically focused immigration policy and the increasingly global nature of both individual and national economic conduct in the global economy of the 21st century.

A number of LPRs, also known as green card holders, temporarily live outside the United States for a variety of legitimate reasons. In a globalized world, LPRs may more readily find employment assignments in other countries or they may need to be outside the United States to look after a sick relative. Essentially, an LPR must be returning from a temporary visit abroad under INA § 101(a)(27) in order to avoid a charge of abandonment. The term “temporary visit abroad” has been subject to interpretation by the Circuit Courts, and although the LPR may remain outside the United States for an extended period of time, the visit may still be considered temporary so long as there is an intention to return. The Ninth Circuit’s interpretation in Singh v. Reno, 113 F.3d 1512 (9th Cir. 1997) is generally followed:

A trip is a ‘temporary visit abroad’ if (a) it is for a relatively short period, fixed by some early event; or (b) the trip will terminate upon the occurrence of an event that has a reasonable possibility of occurring within a relatively short period of time.” If as in (b) “the length of the visit is contingent upon the occurrence of an event and is not fixed in time and if the event does not occur within a relatively short period of time, the visit will be considered a “temporary visit abroad” only if the alien has a continuous, uninterrupted intention to return to the United States during the visit.

For a more extensive review on this subject, we refer you to our article, Home Is Where TheCard Is: How To Preserve Lawful Permanent Resident Status In A Global Economy, 13 Bender’s Immigration Bulletin 849, July 1, 2008.

With the deadline period for enrollment on March 31, 2014, a number of non-citizens, including LPRs,  are eligible for health care benefits under the ACA.  The ACA requires all “applicable individuals” including LPRs to maintain “minimum essential health coverage,” and the failure to do so will result in a penalty when they file their federal income tax returns for year 2014 onwards. The “minimum essential coverage” is required on a monthly basis, but only during those months that qualify people as applicable individuals.”  On March 26, HHS released guidance which clarifies that many consumers who were unable to enroll through the marketplace before the March 31 deadline are eligible for a special enrollment period (SEP). The SEP gives qualifying consumers additional time to get health coverage without being assessed a penalty. To be eligible for the SEP, the consumer must have experienced one of the barriers identified in the guidance. These barriers include experiencing errors related to immigration status and being transferred between the marketplace and state Medicaid/CHIP agency. The additional time available to apply depends on the specific barrier and when it is resolved.

An LPR residing outside will need to purchase health insurance under the ACA.  There are circumstances under which LPRs can still be deemed to be maintaining minimum essential coverage even when they are outside the United States if they meet the Internal Revenue Service test for shielding their foreign income from US taxation.

Under 26 CFR 1.5000A-1, “An individual is treated as having minimum essential coverage for a month—

(i) If the month occurs during any period described in section 911(d)(1)(A) or section 911(d)(1)(B) that is applicable to the individual”.

In turn, section 911(d)(1) provides:(d) Definitions and special rules
For purposes of this section—

(1) Qualified individual

The term “qualified individual” means an individual whose tax home is in a foreign country and who is—

(A) a citizen of the United States and establishes to the satisfaction of the Secretary that he has been a bona fide resident of a foreign country or countries for an uninterrupted period which includes an entire taxable year, or

(B) a citizen or resident of the United States and who, during any period of 12 consecutive months, is present in a foreign country or countries during at least 330 full days in such period.

Section 911 of the Internal Revenue Code allows certain US citizens and LPRs to shield their foreign income from US taxation by virtue of living outside the United States. The foreign earned income exclusion for 2013 is $97, 600.

Since the full consequences of decisions on Obamacare will not become plainly evident until April 2015, any interpretations advanced now must be necessarily both preliminary and tentative, subject to modification if and when the IRS provides future guidance. It is this continuing involvement of the IRS, as well as the byzantine complexity of the ACA itself, that commends a healthy dose of modesty to all commentators. LPRs who are eligible to take the section 911 exemption because they are not physically present in the United States for a full 330 days within a 12 month consecutive month period are treated as having minimum coverage for that 12- month period. It is still not clear whether  LPRs would have to elect to claim the foreign earned income exclusion by filing Form 2555 with  their tax returns so that they be deemed to have minimum essential coverage or whether the IRS will develop a special form for that purpose.

While it is true that only a US citizen can claim the bona fide resident of a foreign country exception, an LPR, if s/he is also tax resident in a county with which the US has an income tax treaty, can use the bona fide residence test pursuant to the treaty’s nondiscrimination provisions to also claim the foreign earned income exclusion. The bona fide residence test can be utilized even if the individual has not been physically present in the United States for 330 or more days.   If that is the case, can a non US citizen of a treaty country also claim minimum coverage under the ACA?

For example, the nondiscrimination provision of the US-India tax treaty, states in relevant part:

Nationals of a Contracting State shall not be subjected in the other Contracting State to any taxation or any requirement connected therewith which is other or more burdensome than the taxation and connected requirements to which nationals of that other State in the same circumstances are or may be subjected. This provision shall apply to persons who are not residents of one or both of the Contracting States.

This language in the US-India tax treaty would seem to apply to the ACA health mandate exemption, since it is taxation or a requirement connected therewith. After all, the Supreme Court in National Federation of Independent Businesses v. Sebelius, especially Chief Justice Roberts’ opinion, upheld the constitutionality of the health mandate in the ACA by characterizing it as a tax. “The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax,” according to Chief Justice Roberts. “Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness,” the Chief Justice further opined.  While the commerce power apparently has its distinct limits for the Roberts Court, the power to tax does not. For this reason, Solicitor General Donald Verelli, who suggested the possible utility of such reasoning to the Court, may turn out to have singular, if unexpected importance.

On the other hand, it could be argued that the ACA statutes refer only to section 911 and not to treaties.  Also, the treaties define the scope of their application, which may have to be revised to include the ACA penalty. The US-India treaty, for example, applies to the following US taxes:

“In the United States, the Federal income taxes imposed by the Internal Revenue Code (but excludingthe accumulated earnings tax, the personal holding company tax, and social security taxes), and the excise taxes imposed on insurance premiums paid to foreign insurers and with respect to private foundations (hereinafter referred to as “United States tax”)”

Therefore, unless the IRS provides more specific guidance, it is not clear at this time whether an LPR who takes the bona fide residence exception for purposes of shielding foreign income can also be deemed to have the minimum essential coverage.

LPRs who seek to claim a section 911 type foreign earned income exclusion to get out of the mandate under ACA should beware of adverse consequences on their LPR status. Living outside the United States for 330 days or more in itself could lead to a finding of abandonment if the LPR cannot successfully establish that his or her visit abroad was temporary under Singh v. Reno, supra. Even if LPRs assert that their trip abroad was temporary, claiming a section 911 benefit to avoid the health insurance coverage under Obamacare could bolster the government’s charges that they abandoned their status. As we discussed in The Taxman Cometh: When Taking a Foreign Earned Income Exclusion On Your Tax Return Can Hurt Your Ability To Naturalize, taking a section 911 exemption can also impair the applicant’s ability to show that he or she did not disrupt continuity of residence during the relevant 5 or 3 year period. INA § 316(b) states that an absence from the United States of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. Indeed, utilizing the bona fide residence exception, if it is allowed for LPRs under the ACA, would be more perilous than the physical presence exception as the individual must declare a residence in a foreign country. Another issue worth noting for people who claim bona fide residence under tax treaties is that they must file Form 8833 to do so.  Page 4 of the instructions to that form warns that this sort of bona fide residency claim for an LPR under a tax treaty triggers the exit tax for Long Term Residents (LTR):

If you are a dual-resident taxpayer and a long-term resident (LTR) and you are filing this form to be treated as a resident of a foreign country for purposes of claiming benefits under an applicable U.S. income tax treaty, you will be deemed to have terminated your U.S. residency status for federal income tax  purposes. Because you are terminating your U.S. residency status, you may be subject to tax under section 877A and you must file Form 8854, Initial and Annual Expatriation Statement. You are an LTR if you were a lawful permanent resident of the United States in at least 8 of the last 15 tax years ending with the year your status as an LTR ends.

LPRs who live outside may wish to seek other ways to claim minimum essential coverage under the ACA if they do not wish to risk jeopardizing their green cards or their ability to naturalize in the future. For instance, LPRs who have health insurance provided by foreign insurers may qualify as having minimum essential coverage if the coverage is recognized by the Secretary of Health and Human Services. Coverage under group health plans provided through insurance regulated by a foreign government may also be recognized as minimum essential coverage, depending on specific circumstances and whether those plans have received U.S. approval. There are also the following statutory exemptions:

Religious conscience. Membership of a religious sect that is recognized as conscientiously opposed to accepting any insurance benefits. The Social Security Administration administers the process for recognizing these sects according to the criteria in the law.

Health care sharing ministry. Membership of a recognized health care sharing ministry.

Indian tribes.  (1) Membership of a federally recognized Indian tribe or (2) an individual eligible for services through an Indian care provider.

Income below the income tax return filing requirement. If the individual’s income is below the minimum threshold for filing a tax return. To find out if you are required to file a federal tax return, use the IRS Interactive Tax Assistant (ITA).

Short coverage gap. Going without coverage for less than three consecutive months during the year.

Hardship. Suffering a hardship that makes one unable to obtain coverage, as defined in final regulations issued by the Department of Health and Human Services.

Affordability. Unable to  afford coverage because the minimum amount the individual must pay for the premiums is more than eight percent of household income.

Incarceration. Being in a jail, prison, or similar penal institution or correctional facility after the disposition of charges against the individual.

Not lawfully present. Not being a U.S. citizen, a U.S. national or an alien lawfully present in the United States.

LPRs can also avail of the short coverage gap exemption. In general, a gap in coverage that lasts less than three months qualifies as a short coverage gap. If an individual has more than one short coverage gap during a year, the short coverage gap exemption only applies to the first gap.

LPRs who fail to maintain the required minimum essential coverage must pay a penalty known as the “individual shared responsibility payment.” In general, according to the IRS, the payment amount is either a percentage of your income or a flat dollar amount, whichever is greater.  The individual will owe 1/12thof the annual payment for each month he or she (or dependents) do not have coverage and are not exempt. The annual payment amount for 2014 is the greater of:

1 percent of household income that is above the tax return threshold for the indvidual’s filing status, such as Married Filing Jointly or single, or

the family’s flat dollar amount, which is $95 per adult and $47.50 per child, limited to a maximum of $285.

The individual shared responsibility payment is capped at the cost of the national average premium for the bronze level health plan available through the Marketplace in 2014. The individual will make the payment when he or she files the 2014 federal income tax return in 2015.

For example, a single adult under age 65 with household income less than $19,650 (but more than $10,150) would pay the $95 flat rate.  However, a single adult under age 65 with household income greater than $19,650 would pay an annual payment based on the 1 percent rate.

If an LPR chooses to pay the penalty instead of purchasing insurance, and fails to pay the penalty or delays in making the payment,   this would need to be disclosed on an N-400 application relating to whether the applicant owes any taxes. This too could jeopardize the naturalization application, and would bring the penalty section of the ACA directly into the context of immigration issues. Furthermore, an LPR opting for the penalty over health insurance may create the impression, whether intentional or unintended, that he or she may not be maintaining ties with the US, further bolstering the government’s charge of abandonment of LPR status.

The ACA is connected to immigration issues, and it behooves a careful practitioner to review the provisions of the ACA as they apply to non-citizens, and LPRs in particular. The interconnectedness of all these issues to the authors is the larger and more widely significant point, such as how seeking an exemption from the health insurance mandate can trigger potential loss of LPR status,  invocation of the exit tax, or the ineligibility to become a US citizen in the future. No longer can any of these decisions be made in a vacuum without consideration of the broader consequences.  The practice of immigration and tax law must invite the collaboration of experts from both disciplines.

Any consideration of the possible adverse consequences resulting from a decision to seek an exemption from the individual mandate imposed by the ACA must be informed by an understanding of the fact that an extended absence from the United States, without more, should never serve as the basis for involuntary abandonment of LPR status. We live in a global economy where international relocation is often the price for career advancement and even job retention.  The law should and must provide that no LPR can be stripped of their “green card” on the basis of abandonment unless he or she clearly manifests or overtly states an intention to give it up. No inference from proven conduct can be possible absent compelling evidence that such was the desired and intended consequence. Application of this caution to the debate over Obamacare would properly reflect the profound importance of LPR status while also serving as a recognition of the enormous and continuing contributions that such permanent residents have made and continue to render to their adopted home.

(Guest writer Gary Endelman is the Senior Counsel of FosterQuan)

Highlights of Good Moral Character in Naturalization

By Myriam Jaidi

In order to qualify for naturalization, an applicant must demonstrate that she is or was a person of good moral character (GMC) throughout the relevant statutory period and through the time she takes the oath of allegiance.  See Immigration and Nationality Act (INA) § 101(f); Title 8, Code of Federal Regulations (CFR) § 316.10.  For the average person, GMC may not be an issue – the average person will have the requisite “character which measures up to the standards of average citizens of the community in which the applicant resides,” USCIS Policy Manual, Volume 12, Part F (hereinafter “PM”), Ch.1A, and will not be statutorily precluded from showing GMC.  GMC “does not mean moral excellence . . . .’”

Matter of Sanchez-Linn, 20 I&N Dec 362, 366 (BIA 1991). GMC is “is incapable of exact definition,” Posusta v. United States, 285 F.2d 533, 535 (2d Cir. 1961), and extremely complex.  Because the statute and regulations governing the meaning of GMC cover a broad range of conduct and acts, and because officers will be exercising discretion in making a determination, an advocate must carefully review GMC with a client to ensure any potential issues are analyzed and addressed. There are statutory and regulatory bars to GMC, as well as a catchall provision which allows an adjudicator to exercise discretion and find a lack of GMC where none of the other bars apply, and it is important to keep them all in mind.  Having an issue that could result in a negative determination of GMC can do more than prevent a person from obtaining U.S. citizenship – it can signal that the individual may be removable and may even be subject to mandatory detention if put in removal or if the person returns to the United States after traveling abroad.  USCIS officers must assess GMC on a “case-by-case” basis, 8 CFR § 316.10(a), examining an applicant’s conduct and acts during the relevant statutory period immediately preceding the application – 5 years as a general matter, INA 316(a)(1), 3 years for those who have been residing with their U.S. citizen spouse for that period, INA 319(a), and 1 year for those who have served honorably in the U.S. military, 8 CFR § 329.2(d).  However, officers are not limited to the statutory periods, and can go back in time as far as they believe necessary in assessing whether a person has experienced a “reform of character,” or if the officer believes that “the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.”  8 CFR § 316.10(a)(2).  An officer must consider “the totality of the circumstances and weigh all factors” when considering reformation of character in conjunction with GMC within the relevant period. PM Ch.2B.  The PM provides officers with the following list of factors to consider in assessing an applicant’s current moral character and reformation of character:  family ties and background; absence or presence of other criminal history; education; employment history; other law-abiding behavior (meeting financial obligations, paying taxes, etc.); community involvement; credibility of the applicant; compliance with probation; length of time in United States.  Id.  A GMC determination therefore involves a balancing test and advocates should make a strong showing of equities where any negative factors that do not constitute a bar to establishing GMC are present, to present a strong foundation upon which an adjudicator may be swayed to find in an applicant’s favor.

Absolute Bars to Showing GMC

An individual cannot show GMC if he or she has:

  • Been convicted of murder at any time (8 CFR § 316.10(b)(i));
  • Engaged in persecution, genocide, torture, or severe violations of religious freedom at any time (INA § 101(f)(9));
  • Been convicted of an aggravated felony as defined in INA § 101(a)(43) on or after November 29, 1990 (INA § 101(f)(9), 8 CFR § 316.10(b)(ii)).

Note that an individual who was convicted of an aggravated felony before November 29, 1990 and does not otherwise fall into any of the permanent or conditional preclusions to showing good moral character can naturalize.  They face an uphill battle and must demonstrate that they have made exemplary efforts to redeem themselves, but it can be done, if not at the USCIS level, then in federal court.  For an excellent example of the showing that needs to be made, and how advocates can prepare not only an application but also their client for the application process, see Lawson v. USCIS, 795 F.Supp.2d 283 (SDNY 2011), discussed at length in a previous blog post.  Judge Denny Chin of the U.S. Court of Appeals for the Second Circuit, sitting by designation in district court, found that Lawson, a Vietnam War veteran honorably discharged from the Marines, had established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985. Judge Chin found Lawson had paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates” and continued his efforts at reform after he was released.  Cases like Lawson demonstrate that in preparing a naturalization application for a client with a criminal history or any other GMC issue, it is important to pull out all the stops and be creative about demonstrating all of the ways in which your client is an asset to the community. Make sure they are able to communicate the many ways in which they participate in and contribute to the various communities with which they may interact.

Conditional Bars for Acts in the Statutory Period

Beyond the absolute bars to establishing GMC, the statute and regulations provide a laundry list of what USCIS refers to as “conditional bars” to establishing GMC, found in INA § 101(f) and 8 CFR 316.10:

  • One or more crimes involving moral turpitude
  • Convicted of two or more offenses, aggregate sentence imposed five years or more
  • Controlled substance violation
  • Admitting to any of the above
  • Incarceration for aggregate of 180 days due to a conviction
  • False testimony
  • Prostitution or commercialized vice
  • Smuggling of a person
  • Polygamy
  • Gambling
  • Habitual drunkard

Here are highlights of some of the more complex conditional bars:

Crime Involving Moral Turpitude

Being convicted of a crime involving moral turpitude (CIMT) during the statutory period precludes a finding of GMC.  This excludes a conviction for a purely political offense as well as an offense that falls within the petty offense exception in INA § 212(a)(2)(ii)(II) (maximum penalty possible does not exceed one year and the person was sentenced to 6 months or less imprisonment) or the youthful offender exception in INA § 212(a)(2)(ii) (committed crime when under 18, crime committed (and person released from resulting confinement) more than 5 years before application for the benefit).  If the client is unclear on whether they have been convicted or what they may have been convicted of, make sure you obtain any and all records relevant to their brush with the criminal justice system.  You can have them request a copy of their file from their criminal defense attorney, obtain an FBI rap sheet, have them go to the court where their case was heard and request a record or court disposition.  Try to get as much documentation as possible and do not rely solely on the FBI rap sheet because it may be incomplete.  Like GMC, CIMT is not defined in the INA or implementing regulations and is incredibly complex.  Moral turpitude refers generally to conduct that “shocks the public conscience,” conduct that “is inherently base, vile, or depraved, and contrary to the accepted rules of morality and the duties owed between persons or to society in general. . . . Moral turpitude has been defined as an act which is per se morally reprehensible and intrinsically wrong, or malum in se so it is the nature of the act itself and not the statutory prohibition of it which renders a crime one of moral turpitude.” Matter of Franklin, 20 I&N Dec. 867, 868 (BIA 1994), aff’d, 72 F.3d 571 (8th Cir. 1995). Key to the determination of moral turpitude is “whether the act is accompanied by a vicious motive or a corrupt mind.” Id.  Each statute must be examined to determine whether it involves moral turpitude, but some common elements of CIMTs are fraud, theft (intent to permanently deprive the owner of property), crimes involving bodily harm to another with an intent to harm, and even some instances of harm resulting from criminally reckless conduct.  The CIMT concept has developed over time through a multitude of court decisions, and the steps one must take in analyzing whether a crime amounts to a CIMT continues to be fought out in the courts.  The determination of whether a crime is a CIMT depends on the judge, the wording of the particular statute at issue, and whether the judge applies the “categorical approach” (which requires consideration of the minimal conduct implicated by a penal law) or “modified categorical approach” (where the categorical approach does not yield an answer because a criminal statute includes offenses that fall outside the generic criminal category, this approach allows consideration of the record of conviction for clarification), among other things. Because the topic of CIMTs can fill many volumes, an in-depth analysis of how to identify a CIMT is beyond the scope of this blog post, and the reader is referred to resources such as Mary E. Kramer, Immigration Consequences of Criminal Activity: A Guide to Representing Foreign-Born Defendants (5th Ed. 2012)(an AILA publication), that deal in more depth with CIMTs and other issues relating to crimes and immigration.Keep in mind that in addition to precluding a finding of GMC, one CIMT within 5 years of admission where the crime is one for which a sentence of one year or more may be imposed makes a person deportable, see INA § 237(a)(2)(A)(i), as do two or more CIMTs at any time. See INA § 237(a)(2)(A)(ii).  An advocate also has to be aware of the impact of a criminal conviction on a lawful permanent resident who wants to travel outside the United States.  If a lawful permanent resident with one or more CIMTs on her record travels outside the United States, upon return she may be considered an applicant for admission under INA § 101(a)(13), and may be subject to mandatory detention under INA § 236(c).

False Testimony

Giving false testimony with the intent of obtaining an immigration benefit precludes a finding of GMC even if the information provided in the false testimony is not material. “Testimony” must be oral and must have been made under oath.  False statements in writing, such as false information provided in an application or fraudulent documents submitted with an application do not constitute “false testimony” for the purposes of this basis for denying GMC.  Note however, that failure to truthfully answer the questions on the Form N-400 when combined with the fact that an applicant is usually asked to reaffirm his or her answers under oath during the naturalization interview can constitute false testimony.  Providing a false written statements and/or fraudulent documents can result in a finding of a lack of GMC under the catchall provisions.  For example, an individual provides a forged document to the government in conjunction with application for naturalization. Although the document does not meet the requirements for “false testimony,” the fact of having submitted a forged document to the government could qualify as an “unlawful act” because it would be a violation of 18 USC 1503 and/or 18 USC 1519, among others. A similar outcome could result from the submission of a false affidavit or declaration made under penalty of perjury, which could qualify as an “unlawful act” as a violation of 18 USC 1623.  For an in-depth and engaging discussion of how statements, both written and oral, can result in the inability to show GMC, see Etape v. Napolitano, 664 F.Supp.2d 498 (D. MD 2009). Be aware that not all incidents of false testimony need be fatal to a finding of GMC. Where an individual gives false testimony under oath for reasons other than obtaining an immigration benefit, such statements may not undermine a showing of GMC. False statements or misrepresentations made because of “faulty memory, misinterpretation of a question, or innocent mistake,” United States v. Hovsepian, 422 F.3d 883, 887 (9th Cir. 2005), or as a result of “embarrassment, fear, or a desire for privacy,” Kungys v. United States, 485 U.S. 759 (1988), should not preclude a showing of GMC.  See also, Lawson, 795 F.Supp.2d at 294-295. False testimony raises another crucial issue for naturalization, separate from GMC. In a naturalization case, aside from showing GMC, an applicant must also demonstrate that he was lawfully admitted to the United States for permanent residence under INA 318.  Any fraud, misrepresentation, or material omission in the individual’s adjustment of status or immigrant visa process will not only prevent a person from naturalizing, it can also lead to recission of permanent residence under INA 246, if discovered within 5 years of admission, and to removal proceedings at any time. Even after naturalization, an individual can be subject to denaturalization and removal proceedings because of fraud, misrepresentation or material omission. Naturalization may be revoked pursuant to INA 340(a) where it was procured by concealment of a material fact or willful misrepresentation.

Prostitution

If a person has engaged in prostitution, procured or attempted to procure or to import prostitutes or receives the proceeds of prostitution, or was engaged in any other type of commercialized vice during the statutory period, he will be precluded from showing GMC.  This section does not require a conviction and applies even if the prostitution occurs in a jurisdiction where it is legal.  Prostitution is defined in the Department of State regulations as “promiscuous sexual intercourse for hire.”  22 CFR § 40.24(b).  However, one incident of prostitution does not constitute “engaging in” prostitution for the purpose of this bar to GMC.  See Matter of T, 6 I&N Dec. 474, 477 (BIA 1955).  Rather, to “ ‘engage in’ means to carry on over a period of time a type of conduct, a pattern of behavior, or form of activity in which sale of the body for carnal intercourse is an integral part . . . .”  Id. Similarly, in Matter of Gonazalez-Zoquiapan, 24 I&N Dec. 549 (BIA 2008), the BIA agreed with the respondent in that case that “ ‘procure’ does not extend to an act of solicitation of a prostitute on one’s own behalf.”  The PM cites to and indicates its agreement with these two cases.  Keep in mind that prostitution is generally considered a CIMT, see Matter of W, 4 I&N Dec. 401 (Cen. Office 1951), but a single conviction for prostitution will most likey fall within the petty offense exception in INA § 212(a)(2)(A)(ii)(II), and thus will not trigger the CIMT bar to GMC. Obviously, if a client has a prostitution conviction, you should check to make sure the petty offense exception applies.  More than one conviction, however, will bring the person within the CIMT bar to GMC, if during the statutory period, and will also make the person deportable under INA § 237(a)(2)(ii), inadmissible under INA § 212(a)(2)(A)(i), and subject to mandatory detention under INA § 236(c).  Please note that whether simple prostitution is a CIMT is currently being contested before the Board of Immigration Appeals, and AILA has submitted an amicus brief arguing that “the BIA should hold that simple prostitution is not categorically a crime involving moral turpitude for the sex worker or client.”A victim of human trafficking who had T nonimmigrant status and adjusted to LPR status, would presumably not have to be concerned about the prostitution bar to showing GMC, because his or her involvement with prostitution would likely have been over for at least 8 years, given that in order to qualify for LPR, one has to have been in T status for 3 years, and then to qualify for naturalization, one must be in LPR status for at least 5 years. However, any arrests and/or convictions must be disclosed in the naturalization process, and extenuating circumstances and equities will need to be presented to convince an officer to exercise discretion in the applicant’s favor.

Habitual Drunkard

A person who is a “habitual drunkard” during the statutory period cannot show GMC. The PM directs officers to examine various documents that may reveal habitual drunkenness including “divorce decrees, employment records, an arrest records.” PM Ch.5J.  Other factors that officers may look to in determining whether someone is a habitual drunkard include “termination of employment, unexplained periods of unemployment, and arrests or multiple convictions for public intoxication or driving under the influence.”  Id.  It is not clear how many convictions for or arrests for driving under the influence (DUI) would trigger a finding that someone is a habitual drunkard.  As a general matter, a single conviction for a simple DUI (or driving while intoxicated (DWI), without any aggravating factors, should not result in a negative determination regarding GMC.  See, e.g., Rangel v. Barrows, No. 07 Civ. 279(RAS), 2008 WL 4441974, at *3 (E.D.Tex. Sept. 25, 2008) (“[A] single DWI conviction is insufficient to preclude an applicant from establishing good moral character.”); Ragoonanan v. USCIS, No. 07 Civ. 3461(PAM), 2007 WL 4465208, at *4 (D.Minn. Dec. 18, 2007) (“[A] single DWI conviction, standing alone, does not statutorily bar a naturalization applicant from establishing good moral character when he has been candid about the conviction.”).  Even multiple DUI convictions have not resulted in a negative determination of GMC.  See, e.g., Yaqub v. Gonzales, No. 05 Civ. 170(TSH), 2006 WL 1582440, *5 (S.D.Ohio June 6, 2006) (holding that two DUI convictions do not preclude finding of good moral character, especially where applicant is “forthright”); Puciaty v. Dep’t of Justice, 125 F.Supp.2d 1035, 1039 (D.Haw.2000) (holding that two DUI arrests do not preclude finding of good moral character).  Moreover, simple DUI should not constitute a CIMT or a “crime of violence” aggravated felony. A single DUI conviction without aggravating factors, for example under a statute that does not include any elements relating to intent, such as an intent to harm, would not qualify as a CIMT, nor would multiple convictions for simple DUI. See e.g., Matter of Torres-Varela, 23 I&N Dec. 78 (BIA 2001) (finding that multiple convictions for the same DUI offense, which individually is not a crime involving moral turpitude, do not, by themselves, aggregate into a conviction for a crime involving moral turpitude) (citing Matter of Fualaau, 21 I&N Dec. 475 (BIA 1996)).  After the Supreme Court decision in Leocal v. Ashcroft, 543 U.S. 1 (2004), simple DUI convictions do not generally qualify as “crime of violence” aggravated felonies.  Of course, each statute must examined to ensure the analysis in Leocal applies; in that case the key was the absence of a mental state that would give rise to a finding of moral turpitude.   However, if a client does have even just one DUI conviction, you have to be prepared to support the argument that a single DUI should not preclude demonstration of GMC, especially in light of the number of cases that go to the BIA and federal courts on this issue and reports coming out of field offices.

Bars that apply absent “extenuating circumstances”

For the following three conditional bars, which include the catchall of “unlawful acts,” unless the applicant can show extenuating circumstances, he will be found to lack GMC if any of the below occurred during the statutory period.  Keep in mind that with regard to these conditional bars, the applicant is effectively entitled to, and in all circumstances should, show extenuating circumstances.  In general, extenuating circumstances must precede or be contemporaneous with the commission of the offense – equities that arise after the commission of the offense will not be viewed as “extenuating circumstances” by DHS.  See PM, Ch.2E.

  • Willful Failure to Support Dependents
  • Extramarital Affairs which tended to destroy a marriage
  • Unlawful Act

The “unlawful acts” bar provides a broad spectrum of issues.  A person is precluded from showing GMC if, during the statutory period and in the absence of extenuating circumstances, he has committed “unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of Sec.316.10(b)(1) or (2).”  According to the PM, an “ ‘unlawful act’ includes any act that is against the law, illegal or against moral or ethical standards of the community.  The fact that an act is a crime makes any commission thereof an unlawful act.”  PM Ch.5E.  The PM goes over the examples of unlawful voting, false claim to U.S. citizenship for voting, and failure to pay taxes.  Here we review common issues including traffic tickets, domestic disputes, and pending cases. In 2006, USCIS confirmed through AILA liaison that a “single traffic ticket that does not result in a disqualifying arrest or conviction under the INA or a non-criminal moving violation, standing alone, will not be the sole basis for a denial of naturalization for lack of the requisite moral character.”  You should review traffic tickets with your client and if they have a series of tickets, ask them to explain, because if they have a large number of tickets, this may lead to a question of whether an adjudicator will see your client as failing to live up to community standards in having a repeated series of unlawful acts.  Some clients may come to you with a history of domestic disputes.  Be sure to analyze carefully any contact your client may have had with the criminal justice system or family court, relating to any domestic altercations.  Determine whether the client has had arrests, convictions, or protective orders relating to a domestic incident. Domestic violence can result in convictions that count as CIMTs and/or aggravated felonies, and can trigger deportability under INA 237(a)(2)(E).  Where a client has been arrested but no charges resulted from the arrest, the arrest must still be disclosed on the Form N-400, because failure to disclose an arrest can constitute false testimony in the context of a naturalization interview. The arrest itself will likely trigger an inquiry into the “unlawful act” that led to the arrest, thus the client must be prepared to explain briefly what happened with the arrest in a way that will not lead to an admission that meets the definition of a “conviction” pursuant to INA § 101(a)(48) (Matter of K-, 7 I&N Dec. 594 (BIA 1957) mandates the specific procedure that a government official must follow in order to elicit an admission that may qualify as a conviction).  If a client has a pending case, even for something minor like a disorderly conduct or a simple DUI with no aggravating factors, it would be best to wait for the case to be resolved before applying for naturalization, or try to get the case resolved before the interview.  (Of course, even minor charges require analysis of the statute at issue to ensure what might at first appear minor is something more complex.) If it is not possible to reach resolution before an interview, when facing a charge that you have determined does not trigger any issues, such as a simple DUI (and there are no other problematic cases in your client’s history), you should be prepared to argue that even if a conviction were to result, your client can still meet his or her burden of establishing good moral character, especially in light of the fact that “we do not require perfection in our new citizens.”  Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961).

Catchall Provision

Finally, even if an individual does not fall within one of the permanent or conditional bars to establishing GMC, INA § 101(f) provides that this does not “preclude a finding that for other reasons such person is or was not of good moral character.”  This is where an adjudicator can exercise discretion in assessing GMC.  As noted above, adjudicators are required to consider the totality of the circumstances and engage in a balancing of factors in making a determination of GMC.  Thus it is our job as advocates to present as complete a picture of a client as possible where GMC is likely to be an issue.  A careful exploration of a client’s past and present will yield much useful information that can be used to present extenuating circumstances, reformation of character, and to demonstrate that the client has GMC sufficient to merit a grant of citizenship.  Keep in mind that GMC issues overlap with other issues and that if you get a red flag while going over GMC issues, your client might have much more significant problems and face risks including removal and mandatory detention.  Analysis of GMC will help you determine whether the client should or should not risk applying for naturalization, and in managing a client’s expectation as to how much of a fight will be necessary to show GMC, and in what venues (USCIS, AAO, federal court) that fight might need to take place.

I PLEDGE ALLEGIANCE: THE NATURALIZATION OATH AND DUAL CITIZENSHIP

By Gary Endelman and Cyrus D. Mehta

The oath ceremony is often one of the most significant and profound in an immigrant’s journey towards American citizenship. It signifies the end of the immigrant experience and is the final threshold before one’s acceptance as a citizen. It is also a happy moment, and the ceremony is generally accompanied by a stirring speech from a judge or well-known public official. Still, the oath, as prescribed by section 337 of the Immigration and Nationality Act (INA), requires a serious commitment from the immigrant to forever renounce former allegiances, and also insists that the naturalization applicant take the oath without mental reservation or evasion. People may still wish to keep their former citizenship even while becoming American citizens for a number of reasons, such as ease of travel to the country to conduct business or to continue to access the country’s social security and healthcare system. Our blog examines the impact of the oath on the immigrant’s desire to retain his or her citizenship of the former country.  At journey’s end, we suggest that, contrary to popular assumption or common understanding, American law is much more tolerant towards and accepting of dual citizenship than most of us, lay and lawyer alike, have ever believed.

The current format of the oath of allegiance is as follows:

“I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty, of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely, without any mental reservation or purpose of evasion; so help me God.”

When a UK citizen takes such an oath and becomes an American citizen, what is the effect of this oath on his or her UK citizenship? The oath requires the intending citizen to “absolutely and entirely renounce and abjure all allegiance” to any country that he or she has been a citizen. At the same time, it does not seem that this individual is required to give up UK citizenship. Moreover, since the United States manifestly cannot alter the relationship that any subject or citizen has with the country of their birth or prior citizenship,  the import of the naturalization oath lies  exclusively as an expression of American attitude and belief. The requirement to renounce all allegiance to your former country does not mean that you have to cease being a citizen of that country. The concept of dual citizenship or dual nationality has long been recognized, and the State Department in recognizing dual nationality states, “A U.S. citizen may acquire foreign citizenship by marriage, or a person naturalized as a U.S. citizen may not lose the citizenship of the country of birth. U.S. law does not mention dual nationality or require a person to choose one citizenship or another.”

UK does not seem to mind when its citizens takes up the citizenship of another country, including   American citizenship, which requires the taking of the oath of allegiance. German citizens, in order to retain their citizenship while obtaining the citizenship of another country, must file a Beibenhaltungsgenehmigung prior to applying for American citizenship.  Some attorneys have reported isolated instances of naturalization examiners denying the N-400 application on ground that such a person will not be able to take the US oath of allegiance without reservation. Moreover, the Beibenhaltungsgenehmigung asks for the applicant’s personal information such as name, address, date of birth, and the length of residence outside Germany. The form also asks about the applicant’s ties to Germany and detailed reasons why the applicant has to become a citizen of US or another country. No declaration of primary or exclusive allegiance to Germany is required nor does the German procedure  demand or expect any act in derogation of US citizenship.

INA section 349 specifies several conditions under which a US citizenship may be lost. These include:

  • becoming a naturalized citizen of another country, or declaring allegiance to another country, after reaching age 18;
  • serving as an officer in a foreign country’s military service, or serving in the armed forces of a country which is engaged in hostilities against the US;
  • working for a foreign government (e.g., in political office or as a civil servant);
  • formally renouncing one’s US citizenship before duly authorized US officials; or
  • committing treason against, or attempting or conspiring to overthrow the government of the US. .

At no time is the newly minted naturalized American required to give up his or her foreign passport nor is the subsequent use of such passport a potentially expatriating act under INA 349.  If Congress had wanted to make post-naturalization travel on a foreign passport a potentially expatriating act, it knew full well how to do so. Under the well-known doctrine of expressio unius est exclusio alterius (“ the express mention of one thing is the exclusion of all others”), such a conspicuous omission is a clear indication that the naturalized citizen does not endanger his or her American citizenship by future travel on a foreign passport, so long as she leaves and enters the United States on an American passport as required by INA 215(b).

The primary effect of recent developments in the US regarding dual citizenship has been to add the requirement that loss of citizenship can only result when the person in question intended to give up his citizenship. At one time, the mere performance of the above (or certain other) acts was enough to cause loss of US citizenship. In Kawasita v United States, 343 US 717, 753(1952) the Supreme Court held that dual citizenship is “ a status long recognized in the law…the concept of dual citizenship recognizes that a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both. The mere fact that he asserts the rights of one citizenship does not, without more, mean that he renounces the other… when one has a dual citizenship, it is not necessarily inconsistent with his citizenship in one nation to use a passport proclaiming his citizenship in the other…” The trend in US law in recent decades has clearly and consistently been in favor or accepting dual citizenship. Former INA 352(a)(1) deprived a naturalized citizen of citizenship for residence in country of birth within 3 years of naturalization, which was found unconstitutional by the Supreme Court in Schneider v. Rusk, 401 US 815 (1971) and repealed in 1978. US citizens used to lose their citizenship for voting in foreign elections before the Supreme Court ruled otherwise in Afroyim v. Rusk, 377 US 163(1967) . In 1980, the Supreme Court  in Vance v. Terrazas, 444 U.S. 252 (1980) reaffirmed that US citizenship could not be taken away from a citizen absent the voluntary performance of an expatriating act done with the intent to give it up. Even the State Department since 1990 has adopted an administrative premise that a “routine” oath of allegiance to a foreign country that does not explicitly require the renunciation of US citizenship will be presumed to have been performed with the intent to retain such citizenship.

Afroyim and Terrazas, by making it more difficult to lose US citizenship, also served to cause the State Department to become more accepting of dual allegiance.  Danny Terrazas had obtained a Certificate of Mexican Nationality. Even though he lost his US citizenship, the effect of his case was to  make the USA more accepting of dual citizenship by making US citizenship more secure in a constitutional sense. This is further discussed at 7 FAM 1254(e):

“In light of Terrazas, the Department now presumes that U.S. citizens who naturalize as citizens of a foreign state or who declare their allegiance to a foreign state intend, absent evidence to the contrary, to retain their U.S. citizenship (22 C.F.R 50.40(a) and 7 FAM 1222). A U.S. citizen may readily rebut this presumption by either signing the “Statement of Voluntary Relinquishment of U.S. Citizenship” contained in DS-4079 (“Request for Determination of Possible Loss of United States Citizenship”) or by executing a written statement under oath indicating that he or she naturalized as a citizen of a foreign state or declared his or her allegiance to a foreign state voluntarily with the intention of relinquishing U.S. citizenship.”  7 FAM 1254(e)

Readers may also want to consult 7 FAM 1222(a) which  contains the post-1990 State Department presumption that naturalization in a foreign state, without more, is presumed by our State Department to have been done with  an intent to retain USC status and will not therefore cause loss of US citizenship.

During the late 19th and early 20th centuries, the US ratified a series of expatriation treaties (the “Bancroft treaties”, named after American diplomat George Bancroft). The intent of these treaties was to prevent dual citizenship by providing for automatic loss of citizenship by foreigners who obtained US citizenship, or by Americans who obtained foreign citizenship. As a result of the various Supreme Court decisions on dual citizenship, however, the Bancroft treaties became legally unenforceable, and all of them have by now been formally abrogated by the US. One of these treaties (the one with Sweden) is mentioned in the Supreme Court’s decision in Perkins v. Elg, 307 U.S. 325 (1939). The Bancroft treaties marked a rejection by the US of the common law doctrine of permanent allegiance that dates back to an old English case from 1608 called Calvin’s case.   Precisely because of its unique historical origins, born out of revolution and a rejection of the British monarchy, the US developed the notion of expatriation, that one can give up citizenship and acquire new allegiances.

The acceptance of dual citizenship represents a uniquely American return to the concept of permanent allegiance but in a new way. Under the Bancroft 19th century approach, the US embraced the right of its citizens to give up their old allegiances and become Americans. Indeed, the same Congress that defined citizenship in the 1866 Civil Rights Bill and the 14th Amendment, made the right of expatriation part of the corpus of US immigration law. Act of July 27, 2868, c h.249, Sect. 1, 15 Stat. 223 (now codified as INA 349(a)(6) and (7)) (“the right of expatriation is a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty and the pursuit of happiness.”) Now, in the 21st century, while expatriation remains a fundamental constitutional right, we are moving towards what may be called the “globalization of citizenship,” a more elastic but no less durable concept. Originally, common law denied the individual right to stop being a subject of the Crown. Now, the US embraces the right of naturalized citizens to retain their old allegiances while adding new ties to the USA. In effect, citizenship is shorn of its prior exclusivity and endowed with an expansiveness that it previously lacked so that a naturalized or birth right citizen can enjoy the privileges and protections of full membership in the American polity while still being able to retain traditional identities or benefit from the addition of new ones.

The final question is why do we need citizenship as a basis for defining the people of a country? There may come a time when a distinction between a citizen and a non-citizen may be as abhorrent as distinguishing people by the color of their skin. But until then, in a famous article by Alexander Bickel, Citizenship in the American Constitution, 15 Arizona Law Review 369 (1973), Professor  Bickel makes a point very much in alignment with our question, namely that one of the key reasons for the stability of the American political system, one of the “secret sauces” as we would like to say,  that has contributed to the acceptance and efficacy of our constitutional framework is the fact that traditionally citizenship does not play a supreme role nor endow its holders with rights and privileges far in excess of others. “It is gratifying,” he observes “that we live under a Constitution to which the concept of citizenship means very little.” Bickel at 367.   “Had citizenship been that important to the Founding Fathers, surely they would have bothered to define it.  Ironically, the surpassing relevance of citizenship lies not in the privileges it preserves or in the distinctions it enshrines but in  what Bickel terms its “minimalist role.”” It is precisely such modesty that serves to broaden opportunity for all, to give non-citizens what Jefferson called a “stake in society” so that even those who are not citizens identify the nation’s success and well being with their own.

Immigration law does not evolve in a vacuum but mirrors the society writ large. So, for example, the 1952 Act was chock full of ideological grounds of exclusion in the depths of the Cold War. The 1965 abolition of the national origins quota as an international civil rights bill passed the year after the 1964 civil rights act and the same year as the voting rights act.  The American Competitiveness in the 21st Century Act was passed at the height of Clinton prosperity So, with the growing acceptance of dual citizenship the fact that more Americans work abroad than ever before, that American business has gone global, that jet travel has long since become common and is no longer the province of the rich or powerful, that growing numbers of Americans go to college and beyond, that the world is increasingly flat with transfer of technology crossing national boundaries- all of this has made the world smaller, more of a global village. As this has happened, as our horizons have widened, the notion of dual allegiance has become more commonplace and more acceptable to Americans own sense of what kind of a people they are and what manner of nation we have become.

(Guest author Gary Endelman is the Senior Counsel of FosterQuan)

THE TAXMAN COMETH: WHEN TAKING A FOREIGN EARNED INCOME EXCLUSION ON YOUR TAX RETURN CAN HURT YOUR ABILITY TO NATURALIZE

By Gary Endelman and Cyrus D. Mehta

Maintaining continuity of residence is paramount if one wants to naturalize and become a US citizen. For an in depth discussion, we refer you to our  prior blog Naturalization In A Flat World and Gary Endelman’s recent article, The Enigma of Disruption: What Continuity of Residence In Naturalization Really Means, 17 Bender’s Immigration Bulletin 1437, August 1, 2012. Even though a naturalization applicant meets all the eligibility criteria, an examiner can still deny an application for failure to maintain the continuous residence requirement. Tax issues can further trip up the applicant, especially when one is trying to shield foreign earned income from US taxation, which this blog will focus on.

But before we do so, we provide the basic eligibility criteria for naturalization.

An applicant must meet certain threshold eligibility criteria in order to become a US citizen. Pursuant to § 316(a) of the Immigration & Naturalization Act (INA), the applicant must establish that immediately preceding the filing of the application, he or she has resided continuously within the US for at least five years after being lawfully admitted for permanent residence. If the applicant has been in marital union with a US citizen spouse for three years, the continuous residence requirement is three years instead of five years. Moreover, under INA § 316(a), the applicant must also establish that he or she has been physically present in the US for periods totaling at least half of that time and has resided within the State or district of the Service where the applicant filed the application for at least three months.

Furthermore, INA § 316(a)(2) also requires the applicant to establish that he or she has resided continuously within the US from the date of the application up to the time of citizenship. INA § 316(a)(3) requires the applicant to establish, inter alia, that he or she is still a person of good moral character during the relevant 5 or 3-year period.

INA § 316(b) states that an absence from the US of more than six months but less than one year during the 5-year period immediately preceding the filing of the application may break the continuity of such residence. INA § 316(b) notes that should such a presumption arise, it may be rebutted if the applicant can establish that he or she in fact did not abandon his or her residence during such period.

What precisely is continuous residence?  INA § 101(a)(33) defines residence as follows: “The term ‘residence’ means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.”  But that only tells us what residence means, not continuous residence. The regulation, on the other hand, at 8 C.F.R. §316.5(c)(1)(i) tells us what is not continuous residence. It says that an absence of between six months and one year shall disrupt the continuity of residence unless the applicant can establish otherwise to the satisfaction of the Service. Thus, unless the applicant was outside the US for six months or more but less than a year, he or she should argue that there was no disruption of continuous residence. Yet the authors have known of naturalization examiners improperly clubbing two back to back lengthy trips although each one was less than 180 days.

If an applicant is out of the US for more than 180 days but less than one year, it will cause a disruption of continuity of residence but there is still hope. 8 C.F.R. § 316.5(c)(1)(i) provides examples of the types of documentation which may establish that the applicant did not disrupt the continuity of his or her residence. Specifically, the regulation provides the following examples that an applicant can submit to rebut an allegation of disruption of continuity of residence:

(A) The applicant did not terminate his or her employment in the US;

(B) The applicant’s immediate family remained in the US;

(C) The applicant retained full access to his or her US abode; or

(D) The applicant did not obtain employment while abroad.

While one is already treading on thin ice while trying to demonstrate continuous residence, shielding foreign-earned income from US taxation can create yet another chink in one’s armor when trying to rebut an allegation of disruption of continuity of residence. Many accountants may not know this, but tread with caution if you wish to naturalize and are planning to shield foreign earned income from US taxation that can protect you up to $92,900.

There are two different ways in which one can file for earned foreign income exclusion through filing IRS Form 2555. One way is by claiming to be a bona fide resident of a foreign country for an entire tax year or by declaring physical presence there for a minimum of 330 days over 12 consecutive months. The filing of Form 2555 may be viewed as further evidence of failing to satisfy the continuous residence for naturalization. One potential point for advocacy is that the filing of an IRS 2555 based on spending 330 days outside the US is more benign than claiming you were a bona fide resident of a foreign country.  The former is a mechanical application of the earned income exclusion, and if the applicant can independently establish eligibility for naturalization despite being out for 330 days, we do not see why an IRS 2555 filed on the 330 days exemption should adversely impact the applicant.   Even the USCIS Adjudicator Field Manual in Chapter 74 clearly makes a distinction between the bona fide resident exemption and the physical presence exemption, and supports our argument.

Of course, the cautious immigration lawyer may suggest to the client to simply pay foreign tax and deduct rather than protect one’s foreign income up to $92,900.    This may work where you need to pay a foreign tax that is comparable to the US tax rate, but in some countries like Hong Kong or Dubai, the tax rate is much lower or next to nothing. Or you can be working for a UN or international organization where you are totally exempt from taxes. Under such circumstances, the $92,900 deduction would benefit the applicant and may outweigh the marginal risk in the event of an abandonment claim or naturalization denial.

But this may not be the end of the argument in favor of shielding foreign earned income based on the 330 days out of the US exemption. Look at “Home on the Range: Establishing Continuous Residence and Physical Presence for Naturalization Purposes” by Julie G. Muniz and Lyndsey Yoshino,   Immigration Practice Pointers 2012-2013 Ed. (AILA) where they point out that one of the requirements for IRS 2555 is to have a tax home in a foreign country.  This is in addition to meeting either bona fide residence test or physical presence test. This is what Muniz and Yoshino say:

“Even if an LPR can meet the physical presence test… the “tax home” requirement could be fatal to continuous residence. If an LPR has a tax home in the United States, she is precluded from claiming the foreign earned income credit. However, if she claims the credit, she is implicitly indicating that she has interrupted her continuous residence, as it could appear inconsistent to both allege a foreign tax home and claim continuity of residence.”

Under IRS definitions, your tax home is generally your regular place of business or post of duty, regardless of where you maintain your family home. Your tax home is the place where you are permanently or indefinitely engaged to work as an employee or self-employed individual. If your abode is in the US, then it is not possible to claim a tax home overseas.

Although the Muniz & Yoshino article makes a good point about cautioning against claiming a tax home overseas, it can be argued that maintaining a “tax home” in a foreign country ought not to be conflated each time with the  establishment of  a bona fide residence in that country. If that is the case, any tax home in a foreign country, as the AILA article claims, is inconsistent with maintaining continuous residence in the US. For instance, even if one is out for more than 180 days but less than one year, due to a work assignment overseas, the applicant would have in any event broken continuity of residence regardless of the overseas tax home, but can still rebut the presumption under 8 CFR §316.5(c)(1)(i)(A)–(D). The tax home overseas should not in itself be an aggravating factor. What indeed could be more perilous is when one takes a foreign earned income exclusion based on foreign residence rather than physical presence, as also indicated in the Adjudicator’s Field Manual at 74 (g)(9)(B):

If the legal permanent resident declared himself or herself to be a bona fide resident of a foreign country on IRS Form 2555, that means the alien declared to the IRS that he or she went abroad for an indefinite or extended period. He or she intended to establish permanent quarters outside of the United States and he or she openly declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] The applicant applying for naturalization after openly declaring residence in a foreign country on an official United States Government form will most likely be unable to fulfill the residence requirement for naturalization (see 8 CFR 316(c)(2)).

If the legal permanent resident declared himself or herself to be physically present in a foreign country on IRS Form 2555, it only means that the applicant met the IRS’s physical presence test to have a proportion of his or her income excluded form United States taxes. The applicant has not declared residence in a foreign country. [See IRS Publication 54, Chapter 4.] Eligibility for naturalization purposes may be affected if the applicant fails to establish that he or she meets the physical presence requirements or fails to establish that the absence of more than six months but less than one a year did not result in abandonment of LPR status. If the applicant applying for naturalization has sufficient physical presence in the United States for naturalization purposes or can establish that his or her LPR status was not abandoned, then the applicant can still be eligible for naturalization (see Part 3 of the Form N-400).

Think of IRS 2555 as a warning sign whose presence on your tax return will trigger a red flag when applying for naturalization during the period when the applicant needs to maintain continuous residence. This does not mean that it will always be fatal if one tries to shield foreign income from US taxation. Any tax election should only be made by permanent resident aliens after consultation with competent immigration counsel.  All those who hold “green card” status should make certain that they understand what their tax obligations are and should refer to the IRS publication concerning the tax treatment for US citizens and resident aliens abroad. Always look for the presence of those factors with the potential to demonstrate that the applicant has never disrupted continuous residence.  Our blog points out how you can defend yourself if you have based the Form 2555 filing on physical presence overseas rather than a foreign residence. Do not be discouraged if you find this hard to understand. So did Albert Einstein who famously remarked that “This is too difficult for a mathematician. It takes a philosopher.”

ARE THERE SECOND CHANCES IN US IMMIGRATION LAW? JUDGE DENNY CHIN SHOWS THE WAY IN LAWSON v. USCIS

By Myriam Jaidi

Second Circuit Court Judge Denny Chin’s decision in Lawson v. USCIS, 09 Civ. 10195 (DC) (issued July 7, 2011) provides a beacon of hope for individuals who have overcome a reprehensible past and wish to pursue U.S. citizenship, and serves as an exemplar to advocates and adjudicators not only on the legal question of good moral character but also on the way to analyze other cases such as waivers requiring a demonstration of extreme hardship. Like the issue of good moral character, which was the lynch pin in Lawson, extreme hardship waivers require the same care in preparation and in adjudication revealed by Judge Chin’s searching legal analysis in Lawson. Judge Chin’s scrutiny and weighing of all relevant facts and legal issues in the case provides a guide to adjudicators on how to conduct the required “case by case” legal analysis. Judge Chin expertly applies the appropriate legal standards with a keen awareness of relevant policies and priorities, and a judicious exercise of discretion that results in justice triumphing over petty posturing.

Judge Chin’s decision also makes clear that applying a set of government priorities in determining whether a legal standard has been met does not mean that individuals will have an easy time of making their cases. Advocates should review the decision and the laws at issue for a sobering overview of just how high the standard is, and how much work and client preparation need be done to succeed in arguing that someone has demonstrated good moral character in the context of naturalization, or merits a favorable decision on a waiver application in the admissibility context. Adjudicators should, in turn, review the case for guidance, in the absence of guidance from DHS/USCIS, on how to apply the law within the framework of agency priorities.

Make no mistake: the road to showing someone merits a favorable finding of good moral character or a favorable exercise of discretion for a waiver, is a hard one and the bars in these case are nebulous and set quite high. Here we will explore the difficulties of establishing good moral character as a matter of law, but readers should keep in mind that the same principles for building and analyzing a case can readily apply in the waiver context as well.

Although courts have long espoused the notion that “[w]e do not require perfection in our new citizens,” Klig v. United States, 296 F.2d 343, 346 (2d Cir. 1961), those who have committed significant crimes or have other grave negative incidents in their past face an uphill battle that can be won only if they do not fall within one of the bars to establishing good moral character and only if they have made exemplary efforts to redeem themselves.

In Lawson, the court concluded that Vernon Lawson, a Vietnam War veteran honorably discharged from the Marines, established good moral character and therefore was eligible to naturalize despite the fact that he was convicted of manslaughter for killing his wife in 1985 because he paid his debt to society serving 13 years in prison and while there “he overcame his drug and alcohol problems, earned three degrees (including two with honors), completed several training programs, and counseled and taught other inmates.” Lawson at page 2.

In addition, Mr. Lawson continued his efforts at reform after he left the confines of prison:

Upon his release, he obtained gainful employment, and spent eight years as a drug abuse counselor, drawing on his own experience to help countless individuals deal with their addictions. He moved back home with his mother and took care of her as her health failed. He went to church every Sunday and regularly volunteered to help in church activities. He brought food to homeless veterans, played chess in a neighborhood chess club, and tended a neighborhood garden.

Lawson, at page 3. As described by Judge Chin, Mr. Lawson made extensive, ongoing efforts to overcome his past and though, as the court noted, he committed an “unspeakable act”, by the time of the court’s decision he had utterly reformed his life, had paid his debt to society, and therefore established that he met the legal standard for good moral character.

Judge Chin also spent considerable effort in examining Mr. Lawson’s life experiences and how these impacted him, to place Mr. Lawson’s efforts at redemption and the changes he effected in his life in context. Judge Chin closely considered Mr. Lawson’s horrific experiences in Vietnam, where he became a substance abuser as a result of the stress and suffered psychological damage. He did not get the necessary treatment until he was in prison more than 20 years after he returned from serving his country honorably.

In Mr. Lawson’s case, as in many cases, good moral character made the difference between deportation and US citizenship. That these two outcomes are alternatives in one case is astounding and underscores the importance of closely examining and mustering the positive efforts and achievements in an individual’s past and present, even where a significant obstacle to a finding of good moral character may exist. Doing so (and making the determination of whether someone should risk applying for naturalization), however, requires an understanding of the nebulous concept of good moral character as well as a firm grasp of the government’s policy goals.

Although the relevant legislative and regulatory frameworks provide an idea of what precludes a finding of good moral character, no definition exists and the term has been called “incapable of exact definition.” Posusta v. United States, 282 F.2d 533, 535 (2d Cir. 1961). The statutory and regulatory bars may be found in INA 101(f) and 8 CFR 316.10. These laws dictate a finding of a lack of good moral character for a person who has ever been convicted of murder, who has been convicted of an aggravated felony (defined in INA 101(a)(43)) after November 29, 1990, and who has at any time has engaged in conduct described in section 212(a)(3)(E) (relating to assistance in Nazi persecution, participation in genocide, or commission of acts of torture or extrajudicial killings) or 212(a)(2)(G) (relating to severe violations of religious freedom). Further, an applicant must be found to lack good moral character if during the relevant statutory period the applicant:

(i) Committed one or more crimes involving moral turpitude, other than a purely political offense, for which the applicant was convicted, except as specified in section 212(a)(2)(ii)(II) of the Act;
(ii) Committed two or more offenses for which the applicant was convicted and the aggregate sentence actually imposed was five years or more, provided that, if the offense was committed outside the United States, it was not a purely political offense;
(iii) Violated any law of the United States, any State, or any foreign country relating to a controlled substance, provided that the violation was not a single offense for simple possession of 30 grams or less of marijuana;
(iv) Admits committing any criminal act covered by paragraphs (b)(2) (i), (ii), or (iii) of this section for which there was never a formal charge, indictment, arrest, or conviction, whether committed in the United States or any other country;
(v) Is or was confined to a penal institution for an aggregate of 180 days pursuant to a conviction or convictions (provided that such confinement was not outside the United States due to a conviction outside the United States for a purely political offense);
(vi) Has given false testimony to obtain any benefit from the Act, if the testimony was made under oath or affirmation and with an intent to obtain an immigration benefit; this prohibition applies regardless of whether the information provided in the false testimony was material, in the sense that if given truthfully it would have rendered ineligible for benefits either the applicant or the person on whose behalf the applicant sought the benefit;
(vii) Is or was involved in prostitution or commercialized vice as described in section 212(a)(2)(D) of the Act;
(viii) Is or was involved in the smuggling of a person or persons into the United States as described in section 212(a)(6)(E) of the Act;
(ix) Has practiced or is practicing polygamy;
(x) Committed two or more gambling offenses for which the applicant was convicted;
(xi) Earns his or her income principally from illegal gambling activities; or
(xii) Is or was a habitual drunkard.

Finally, a third set of preclusions apply, which includes a catchall. Unless the applicant establishes extenuating circumstances, the applicant shall be found to lack good moral character if, during the statutory period, the applicant:

(i) Willfully failed or refused to support dependents;
(ii) Had an extramarital affair which tended to destroy an existing marriage; or
(iii) Committed unlawful acts that adversely reflect upon the applicant’s moral character, or was convicted or imprisoned for such acts, although the acts do not fall within the purview of §316.10(b) (1) or (2).

The time frame relevant to a determination of good moral character may reach well beyond the specific statutory periods relevant to particular types of petitions, for instance 5 years (individuals applying as lawful permanent residents under INA 316(a)(1)), 3 years (if LPR living for 3 years in marital union with US citizen spouse under INA 319(a)), 1 year (under regulations governing eligibility under INA 329). According to 8 CFR § 316.10(a)(2), USCIS may

take into consideration, as a basis for its determination, the applicant’s conduct and acts at any time prior to [the relevant statutory] period, if the conduct of the applicant during the statutory period does not reflect that there has been reform of character from an earlier period or if the earlier conduct and acts appear relevant to a determination of the applicant’s present moral character.

Within this framework, USCIS is directed by regulation to evaluate good moral character “on a case-by-case” basis. 8 CFR § 316.10(a)(2) There is sparse policy guidance on the question of good moral character. The Adjudicator’s Field Manual contains a lengthy section on good moral character but the section is designed to provide an overview of the statutory bars, methods of uncovering fraud, and procedures for defending challenges to a denial rather than apprising officers of how to objectively assess a person’s character within the framework of the laws and overarching agency policies. The AFM provides a baseline for analysis, specifically that “good moral character means character which measures up to the standards of average citizens of the community in which the applicant resides. Any conduct or acts which offend the accepted moral character standards of the community in which the applicant resides should be considered, without regard to whether the applicant has been arrested or convicted.” AFM 73.6(a). The AFM also provides some helpful guidance with regard to what kind of misstatements may be excused or insignificant because they do not demonstrate the requisite intent to deceive for an immigration benefit. (“[M]isrepresentations that results [sic] from poor memory or because the applicant did not understand the question are not false testimony.”) However, in the next paragraph, the AFM goes on to note that individuals use the failure to understand the question as a “very common defense” and refers readers to another section “regarding interviewing techniques and proper documentation to file in order to eliminate this line of defense.” Perhaps more helpful to adjudicators would be direction on how to figure out whether someone is using a “line of defense” or sincerely has not understood. Such direction is once again found in Judge Chin’s decision.

In Mr. Lawson’s case, the government finally based its effort to deport Mr. Lawson on its claim that he committed perjury (at the deposition taken as part of the action in district court regarding his application for naturalization) for the purpose of obtaining an immigration benefit (in violation of 8 CFR § 316.10(b)(2)(vi)). The government argued that Mr. Lawson did not truthfully answer a question about whether he continued to drink alcohol. Closely examining the questions asked and answers given, Judge Chin found that Mr. Lawson had not understood the question at the deposition. Judge Chin recognized that Mr. Lawson had interpreted the words “drinking” and “drinks” [and “alcohol”] to mean “hard liquor” and reasonably interpreted the question as inquiring whether he continued to engage in abusive drinking. The court concluded that Mr. Lawson could therefore not be found to have committed perjury for not mentioning that he occasionally had wine or beer at family gatherings. The court noted that “[i]n light of the case law and all of the compelling circumstances, the Government’s latest position seems nothing but petty.”

After Mr. Lawson’s many years of hard work to redeem his character, it is daunting to think that a misinterpretation of question could have made all the difference in his case. What saved Mr. Lawson was not only that the court found that he had not answered the question “falsely” but also that case law recognizes other possible motives for false statements besides that of seeking to obtain an immigration benefit or naturalization exist and requires these alternatives to be considered. Judge Chin reviewed case law recognizing that fear, embarrassment or a desire for privacy could be alternative reasons, see Kungys v. United States, 485 U.S. 759, 782 (1988) as could misinterpretation of a question. See United States v. Hovsepian, 422 F.3d 883 (9th Cir. 2005).

Hovsepian involved two individuals who had been convicted in the past of serious crimes, but who, like Mr. Lawson, had completely reformed their lives, both earning advanced degrees and becoming community and youth role models, devoting a great deal of their lives to community leadership. The government argued that in the course of their quest for naturalization, each made false statements on the Form N-400 and regarding other issues (one regarding the nature of a youth group to which he belonged; the other regarding other names by which he had been known). Ultimately, the court found no error in the lower court’s conclusion that the individuals had not given intentionally false testimony for the purpose of obtaining an immigration benefit. Interestingly, the court noted that the question on the form at issue — “Have you at any time, anywhere, ever ordered, incited, assisted, or otherwise participated in the persecution of any person because of race, religion, national origin, or political opinion?” — was rife with potential for misinterpretation or different reasonable interpretations given the extensive case law regarding the concept of “persecution.”

Individuals and their advocates must parse the question of good moral character very carefully and prepare to answer questions carefully, asking for clarification where they do not understand in order to avoid running afoul of the legal standards by mistake. What might appear to be a lost cause may not be if the individual can demonstrate that he has changed for the better because the laws are not meant to punish “but to admit as citizens those who are law-abiding and useful.” Posusta, 285 F.2d at 535-36. Circuit Judge Chin’s decision serves as an excellent reference for understanding what good moral character is and how it can be demonstrated. It also presents guidance for individuals who seek to reform themselves after having committed an act that stands as an obstacle (though not falling within the statutory bars) to naturalization. These individuals must demonstrate sincere and significant efforts to become upstanding and engaged contributors to their communities and to the nation in order to merit a favorable finding on their behalf. Finally, the decision serves, in the absence of guidance from DHS/USCIS on the adjudication of good moral character and similarly the exercise of discretion in waiver cases, as an exacting guide of the type of searching legal and factual inquiry adjudicators should make in these cases, not simply to uncover suspected fraud, but to analyze a person in light of their experiences, their mistakes, and their efforts to remake themselves into law-abiding and useful members of their local and national communities.

NATURALIZATION WHILE WORKING ABROAD FOR AN AMERICAN FIRM

By Cyrus D. Mehta

It is not uncommon for a permanent resident to receive a plum posting for an American corporation overseas or for its subsidiary. This is a frequent occurrence these days in a globalized world, and especially when jobs have become more scarce in the US since the economic downturn. While such an assignment may provide a great boost to the permanent resident’s career, he or she may still wish to preserve the ability to naturalize, but the overseas posting presents a challenge since it may be difficult to maintain continuous residence. One of the key requirements for applying for US citizenship under INA § 316(a) is the need to be physically present for half the time in the US during the qualifying period, which may either be five or three years (if one is married to a US citizen) and to have also resided continuously during this period. The challenges of maintaining residence while on an overseas assignment were addressed in a prior blog, Naturalizing In A Flat World, http://cyrusmehta.blogspot.com/2010/07/naturalizing-in-flat-world.html.

This blog specifically examines the inadequacy of the exception in INA 316(b), which was designed to avoid the need to maintain continuous residence for purposes of naturalizing if a permanent resident is employed by an American firm overseas, or its subsidiary, that engages in the development of foreign trade and commerce of the United States. INA § 316(b) further provides for exemptions when one works overseas for the US government, an American research institution or a public international organization. The USCIS requires the applicant to file Form N-470, http://1.usa.gov/h8HTyj, to seek this exemption.

So far so good. Unfortunately, very few can avail of this exception since INA § 316(b) also requires that the individual be physically present and residing in the US, after being admitted as a permanent resident, for an uninterrupted period for at least one year. One would think that a brief trip to Canada, even for a few hours, would still qualify as an uninterrupted period of at least one year. Wrong, according to the United States Citizenship and Immigration Services. In order to qualify, the permanent resident must demonstrate that he or she never left the US for even a single day (or less if it was to a neighboring country like Mexico or Canada) during that 365 day period. Even a single departure precludes the permanent resident from qualifying for this exception.

We can surely advocate for a re-interpretation of what constitutes an uninterrupted period of one year. Why should an “uninterrupted period of one year” require the individual to stay put in the US for an entire 365 day stretch? Let’s dig a little deeper. In Phinpathya v. INS, 464 US 183 (1984), the Supreme Court interpreted another unrelated statute, INA § 244(a)(1), with similar but not identical language, which granted suspension of deportation to a non-citizen who inter alia “has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application..”

The Supreme Court in Phinpathya reasoned that the ordinary meaning of these words does not admit any exception, and that the individual who qualifies for suspension of deportation must have been physically present without having departed during the 7 year period. Following the Supreme Court decision, the Commissioner of the then Immigration and Naturalization Service adopted a strict interpretation of the physical presence requirement under INA § 319(b) in Matter of Copeland, 19 I&N Dec. 788 (Comm’r 1988) and Matter of Graves, 19 I&N Dec. 337 (Comm’r 1985).

The author gives credit to David Isaacson for pointing out that the INA § 316(b) language and the INA § 244 language at issue in Phinpathya are a little bit different. § 316(b) refers to “the case of a person who has been physically present and residing in the United States, after being lawfully admitted for permanent residence for an uninterrupted period of at least one year, and who thereafter is” in one of the protected classes. The § 244(a)(1) language at issue in Phinpathya referred to an applicant who “has been physically present in the United States for a continuous period of not less than seven years immediately preceding the date of such application,” which is not quite the same thing. § 316(b) does say “physically present,” but it uses the word “uninterrupted” rather than the word “continuous”. Much of Phinpathya, according to Isaacson, goes on and on about the meaning of “continuous”. Although “uninterrupted” sounds similar, that doesn’t necessarily mean it should be interpreted in exactly the same way—especially because much of § 316 uses the word “continuous”, so the distinction between “continuous” and “uninterrupted” presumably means something.

Incidentally, INA §244(a)(1) no longer exists. The current version of suspension of deportation, now known as cancellation of removal, allows the individual to have been out of the US for a period of not longer than 90 days on any trip and for an aggravated period of not more than 180 days to still qualify for this relief. See INA § 240(d)(2). Even long before cancellation of removal replaced suspension of deportation, Congress restored the “brief, casual and innocent” departure exception to suspension applicants, as set forth in Rosenberg v. Fleuti, 374 U.S. 183 (1963) in the Immigration Reform and Control Act of 1986. The rationale for the Service to cling on to the rigid interpretation is that Congress never amended 319(b), while it explicitly provided an exception for applicants seeking relief from deportation Prior to Phinpathya, the interpretation of 316(b) was more in line with the “brief, casual and innocent” test, and the old pre-Phinpathya interpretation ironically still remains. See USCIS Interpretation 316.1(c), http://1.usa.gov/fBeMMU. One can only assume that the USCIS has inadvertently failed to withdraw these interpretations and has not left them there purposefully.

Ideally, it would be simple for Congress to fix it. We are not asking for Comprehensive Immigration Reform here ! But we know that Congress may never act. On the other hand, there is no reason for lawyers not to advance a more generous interpretation of the uninterrupted physical presence requirement under INA § 319(b) to allow brief trips outside the US in an age when frequent overseas travel has become the norm. It is impossible for a high level executive to remain land locked within the US for 365 days. Apart from the two decisions of the INS Commissioner in Graves and Copeland, no federal court has interpreted this provision. In addition to the distinction of the terms “continuous” and “uninterrupted,” from a policy perspective, it makes no sense to analogize 316(b), which furthers our commercial and trade interests overseas, with a defunct provision that allowed undocumented non-citizens to seek a waiver from deportation. Moreover, the term “uninterrupted” appears nowhere else in the statute, except in § 316(b) and in a parallel naturalization provision, INA § 317, for religious workers who work overseas. Why cannot “uninterrupted” allow for short trips that do not meaningfully interruptive of physical presence? Such an interpretation, while consistent with the “brief, casual and innocent” test set forth by the Supreme Court in Rosenberg v. Fleuti to the defunct “entry” doctrine, can also further the trade and commerce of the United States, one of the goals of INA § 316(b), by permitting the executive to take up an overseas assignment for an American firm without fearing the loss of the coveted naturalization benefit at the end of the assignment.

As a practical matter, though, until Congress provides a fix, or there is a sensible reinterpretation of the INA § 319(b) exception to continuous residence, one should only file Form N-470 upon meeting the uninterrupted 365 day requirement.