Tennessee Teenagers Could be Required to Know as Much About America as Immigrants Seeking Citizenship
In a decision issued last week, the Board of Immigration Appeals ruled that an alien who makes a false claim to citizenship at an entry-point has not been admitted under the law. In Matter of Pinzon, a citizen of Venezuela obtained a US passport in the 1980s, using a fake birth certificate. She was convicted in 2002 under 18 U.S.C.§ 1001(a)(2) (2000) for making a false statement. She was placed in removal proceedings, where she argued that she was inadmissible and applied for cancellation of removal. The immigration judge denied her application for cancellation of removal and ordered her removal but granted her voluntary departure.
I upholding the immigration judge’s decision, the BIA ruled that it has long held that a person who makes a false claim to citizenship at a port of entry has not been admitted under the Act. The Board reasoned that since the scrutiny is different when it comes to a non-US citizen seeking admission, an alien who gains admission under a false claim to citizenship cannot be deemed to have been admitted under the Act. The Board also ruled that a conviction under 18 U.S.C.§ 1001(a)(2) (2000) is a crime involving moral turpitude since the alien had to make a false statement, which usually involves moral turpitude.
This decision is erroneous since the crux of “admission” under the Act is whether the alien was in fact inspected by an immigration officer. It was unclear whether Pinzon had undergone such inspection by the Service. We will see if there will be a petition for review in the this case.
For a definition of “admission” under the Act visit: http://www.law.cornell.edu/uscode/text/8/1101
Should you apply for naturalization when you have voted illegally?
Throughout my years of practice, I have met several lawful permanent residents who have either registered to vote, or actually voted in an election. They now want to apply for naturalization, or have already applied and denied, and they are afraid that they will be placed in removal proceedings. Illegal voting is a very serious violation of immigration law, however, the inquiry does not simply end there. There are several things for which the government looks when ruling on these decisions. There are the same thing that an attorney should stress when applying for naturalization for someone in these circumstances, or when appealing a denial of an application for naturalization.
Under section 101(f) of the Immigration and Naturalization Act, a person is precluded from establishing good moral character (for any benefit under the act including naturalization), if the person has claimed he is a United States citizen. However, there are exceptions to this rule when the person is an applicant for naturalization. For example, the law exempts persons 1) who reasonably believed that they are citizens at the time 2) have entered the United States when they were less that 16 years old and 3) whose parents were in fact United States citizens at the time. Memo, Yates, Deputy
Exe. Assoc. Comm. Operations, USCIS, available at, http://www.uscis.gov/USCIS/Laws/Memoranda/VoterMem_Plus86.pdf (2002). The officer should determine if the person falls under this exception to the good moral character rule, and if he does, the officer should approve the application of there are no other things that would prevent approval
If the person does not qualify for the exception under the law, the Service officer must look at several factor including 1) family ties and background; 2) the absence or presence of other criminal history; 3) education and school records; 4) employment history; 5) other law abiding behavior; 6) community involvement; 7) credibility of the applicant; 8) length of time in the United States to see whether the applicant deserves the exercise of prosecutorial discretion. Id. If the person deserves prosecutorial discretion, the officer should adjudicate the application and approve it is there are no other bars to eligibility.
A Service officer must also look at state law to check the requirements for illegal voting. For example, several states require a mental state for the person to be convicted of illegal voting or registration. So if you are a lawful permanent resident and you find yourself in a situation that might prevent you from obtaining citizenship DO NOT LOSE HOPE and call the attorneys at Tucker & Ludin P.A. You can reach us at 727-572-5000 or visit us at www.tuckerludin.com.