Archive for the Citizenship Category.

101-Year-Old Woman Granted Citizenship, but Could Have Been Deported

I recently heard an immigration story with a happy ending. These days, heartwarming immigration stories seem to be few and far between, so I was delighted to hear about it. In 1909, while still an infant, a woman was carried across the Mexico-U.S. border. At that time, crossing the border was nothing like it is today as there were neither checkpoints nor patrol guards. The woman is now 101 years old and a lifelong resident of the U.S., but until this month she was still a citizen of Mexico, a country in which she had apparently never lived. Today, she is a proud U.S. Citizen.

Was this the right outcome ? We couldn’t possibly deny citizenship to a 101-year-old woman, or deport her… could we? Well, by her own admission, she returned from visits to Mexico on several occasions by simply stating she was a U.S. citizen, knowing that she was not, but afraid of being denied entry. Technically, because of these false claims of U.S. citizenship at the border, the law states that she should not only be deported from the U.S. but also barred for life from returning to the U.S. Yes, the law is that harsh. Making a false claim of U.S. citizenship “for any purpose under [the Immigration and Nationality Act] or any Federal or State law is” grounds for being deported and denied admission to the U.S. Although waivers exist to overcome penalties for various other violations of the law, no such relief exists for false claims of U.S. citizenship. Only a very narrow exception exists for naturalization applicants, which apparently this woman met. For most, though, there is no exception and no other form of relief.

This is a happy story that concluded the way it should have. Legally, though, in most cases this outcome is impossible. Although the Department of Homeland Security has prosceutorial discretion and is therefore not required to prosecute all cases, discretion seems to be very rarely exercised, even given recently announced ICE priorities. So, by law, had this woman not met a very narrow exception that allowed her to naturalize, she could have been deported and never allowed to return, even after living in this country for 101 years. Such an outcome would be shameful, abhorrent. Yet our laws are designed to favor that outcome, because the exception to naturalize is very narrow and likely does not apply to most applicants. This scenario provides yet another example of how overly harsh U.S. immigration laws are, and that the time to implement humane immigration laws is now.

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Children of Illegal Aliens

Several politicians and commentators have recently advocated for the repeal of the 14th Amendment, to deny citizenship rights to US-born children of illegal aliens. Some call them “anchor babies,” but that is inaccurate, as such babies cannot benefit their parents until they are 21, too long of a time to establish a motive to enter the US illegally.

But, do advocates of such change know whether they are themselves the descendents of illegal aliens? Many are, although they might not know it.

For decades, aliens illegally here, but who found an employer willing to sponsor them, or who established families here could legalize their status. The law was only hardened in 1996. Accordingly, there are many millions of proud Americans today who might not know that they are here only because the law was then more humane.

Numerous Americans might not know that had their ancestors been subject to current laws, they might not have been allowed in. For example, committing a mistake at any time in a life time, such as retail fraud of a few bucks, or slapping one’s child might make the alien inadmissible under today’s law. How many of our early immigrant families would be regarded as illegal under our existing laws?

Many other Americans who trace their ancestors centuries back might not be aware that they are descendants of unwelcomed entrants, or worse, mercenaries, such as the Hessian soldiers who fought with the British, but who stayed here after the end of the Revolutionary War.

We also should not forget the passengers of the Mayflower, and millions after them, who came to a land already inhabited by others, without documentation or prior permission!

In the end, we are a nation of immigrants who came to this land to make a better life for themselves. Many of us descend from aliens not entitled to be here under today’s law. Under current rules, we are indeed a nation of illegal aliens. But, that apparently did not stop us from building a great country.

Proponents of the repeal of the birth rights complain that we are one of the few countries that are so generous. That is right. But, that is why we are so exceptional. It amuses me that those complainants usually resent any of what the rest of world has to offer, unless it is based on hate and meanness.

But, aside from history, one needs to contemplate what would happen to a baby born in the US who knows no other country, but who is not a citizen? We would be adding a class of sub-human beings, with substandard rights, for no fault of their own. Would we deny them education? Where else can they live if born here? Who would accept them? Would we be throwing them away once they are 18? America is a better country than that.

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Common Misconceptions about Immigrants and Immigration

A law professor in Kansas City, Missouri has recently renewed his efforts to deny non-citizen, undocumented children access to in-state tuition in Nebraska. Kris Kobach, whose previous attempt in Iowa failed, now represents three families whose U.S. citizen children are charged higher tuition rates because they do not qualify for in-state tuition. He argues that non-citizens should not be permitted to pay less than citizens. I am simply unable to understand why anyone believes innocent children should be punished, and with such harsh punishment at that; it is in this nation’s best interest to encourage and permit children to attend college. It is in the States’ best interest to retain autonomy and determine financial benefits afforded to residents.

Aside from those issues, however, it is clear that at the heart of this and similar debates are three major misconceptions about immigrants and immigration: the concept of “citizen” versus “resident,” the demography of Taxpayers, and the civil nature of Immigration Law.

Citizenship

Only recently did I learn that U.S. law provides for citizenship by birth on U.S. soil because of slavery. Lawmakers did not know how to treat slaves; slaves were not considered citizens, and Congress was not willing to grant them citizenship. The solution was citizenship to anyone born in the U.S.

As someone lucky enough to have been born in the U.S., I can say that until studying law, I did not fully recognize the advantages my U.S. Citizenship confers. It was nothing I had ever needed to consider. In learning law generally and immigration law specifically, however, I learned that in many cases, citizenship confers no legal advantage. Often, no distinction is made between citizenship and non-citizenship. At the state level, most laws and regulations focus on residency, rather than U.S. citizenship. In addition to college tuition, non-citizens may get divorced in state court, for example, but only where the court has jurisdiction; jurisdiction is determined in large part on residency in that state, county, or district. Citizenship is irrelevant. Likewise, non-citizens can sue in federal courts. In fact, the U.S. Constitution limits its reach to non-citizens in only a few instances, namely the right to vote and hold public office. The U.S. Constitution generally applies to all residents of the U.S., although the laws have been limited in many instances. Prison inmates, for example, have been deemed to have fewer rights. Notably, this applies to U.S. citizen prisoners and non-citizen prisoners alike. The Bill of Rights, however, does generally apply to all persons residing in the U.S.

So what does citizenship mean? A U.S. passport. The right to enter and exit the borders of the U.S. freely. The right to vote. The right to run for public office. But what else? Is a U.S. citizen more likely to know the history of this country? To be politically aware and engaged? Does it mean citizens actually exercise the right to vote? Are citizens more likely to open a business? Support local businesses? Have access to health care? Be nice to neighbors? Donate to charities? Volunteer in the community? Not necessarily. Citizenship is irrelevant.

I know a lot of immigrants – visitors, temporary residents, undocumented persons, persons out of status, permanent residents, and naturalized citizens. All of them, without exception, love this country. They take pride in it, which they often wear on their sleeves. They explore the beautiful lands that make up the U.S., delve into their communities, eagerly help their neighbors, and even educate themselves politically – despite not having the right to vote in many cases. This is not to say all immigrants are more patriotic or engaged than U.S. citizens; certainly that is not the case. However, it begs the question: why do so many U.S. citizens harbor such resentment towards non-citizen immigrants?

Perhaps it relates to taxes…

Taxes

The second greatest misconception is that immigrants do not pay taxes. The Federal Tax Code is not based on citizenship. Here again, residency is the determining factor. Generally, anyone who lives and works in the U.S. for any amount of time must pay taxes. This applies to all immigrants. This is why a Tax Identification Number (TIN) is made available – so that non-citizens, or anyone who does not have a Social Security Number, can still pay taxes.

In my experience, I have not met any immigrants, documented or undocumented, who do not pay taxes. Of course I am not saying that everyone pays taxes, but the point is that it is a huge misconception that just because someone is an immigrant, documented or undocumented, they do not pay taxes. There is a disconcerting leap in logic in that notion, and is one that simply does not hold water. Further, many surveys of all immigrants indicate that they use fewer social services than any other portion of society, despite being a population that overall pays a high percentage of taxes nationwide. Thus, the allegation that they simply feed off society by not paying into the very pool of money they drain, is a weak and ignorant one.

It is true that many immigrants work without legal authorization to do so. This is a large-scale problem, admittedly. The Department of Homeland Security has increased its efforts to enforce laws that are meant to prevent unlawful hiring practices. This cuts both ways, though. Mass deportation of employees of the Posteville, Iowa factory has devastated that town and left it in financial ruin. Many employers, farmers in particular, hire undocumented persons because they cannot afford to pay minimum wage, or because they cannot fill an unsavory position (think slaughterhouse cleaning crew) otherwise. Yet, minimum wage is in place to protect workers. The issue is far-reaching in our society, and the blame should not be squarely placed on the shoulders of immigrants.

“Illegal”

The term “illegal” in the context of immigration is largely a misnomer. Immigration laws are Federal Civil laws completely separate from Federal Criminal laws. To enter this country without the proper paperwork or to overstay a visa – these are not crimes. They are simply violations of civil law. No one can be sentenced to jail for doing that. In fact, the most severe penalty for violating an immigration law is a misdemeanor punishable up to six months in jail for crossing the border without inspection – roughly the equivalent of the punishment for driving under the influence. (Detention while proceedings are pending is also not criminal in nature, but rather a measure to ensure the detainee leaves the U.S. The conditions of detention, however, blur this line and must be reformed. I previously wrote about this topic.)

Anyone who continues to harbor such ill-will towards immigrants after a better understanding of the basics must know something I don’t, or be coming from a very different place than I am. I would be very interested to know what or where that is…

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