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“Should I become a U.S. Citizen?” The Case for Naturalization and Trump’s Executive Order

imm_3I received a call the other day from a friend of mine in Boston who said he wanted my help in applying for citizenship. He’s been a permanent resident (i.e., Green Card holder) for many, many years, and I know for a fact that he’s an upstanding individual (and the Commonwealth of Massachusetts knows that too since he’s a restaurant owner and maintains a liquor license). I asked him why he now wanted to become a U.S. citizen? As you can imagine, he expressed concerns about just being a permanent resident under President Trump. This individual is Irish to the core and he should have nothing to worry about. His concerns, however, are well-founded.

Not everyone who is a permanent resident becomes a U.S. citizen (i.e., naturalizes), nor is there any legal requirement that one must naturalize. However, permanent residents who naturalize gain important benefits, not the least of which (these days) is security from deportation (in most cases) and the ability to travel with a U.S. passport.

Under the law, to qualify for U.S. citizenship, permanent residents must (a) be at least 18 years of age, (b) reside continuously in the United States for five years (or three years if they are spouses of U.S. citizens), (c) be of good moral character, (d) demonstrate the ability to read, write, speak, and understand English (unless they are exempt from this requirement), (e) pass an examination on U.S. government and history (unless they are exempt from this requirement), and (f) be willing and able to take the naturalization Oath of Allegiance.

Seems simple, right? Sometimes it is. Other times, however, issues arise as to whether someone is a person of good moral character (because of something he or she might have done in his or her past), continuous residency in the United States, to name just a couple.

Is it worth it? I don’t often counsel clients to become a U.S. citizen. I think that’s a very personal decision, and there are many factors that go into that decision. However, these days, I personally think there’s much more at stake for permanent residents, whether they’re from one of the seven predominantly Muslim countries designated in President’s Trump’s Executive Order of January 27, 2017 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” or otherwise.
Few people expect to be arrested for a crime. But the risks for permanent residents who are arrested for a crime, even a seemingly minor one (like a misdemeanor under state law) are much, much higher. Permanent residence can be revoked and the individual can be deported. While there are many benefits associated with being a permanent resident, “permanent” does not necessarily mean “permanent.”

And if not for you, what about your children? We all know that kids make mistakes, and many times they’re really stupid ones. Immigrant kids are especially at risk if they make stupid mistakes. For example, with few exceptions, most convictions related to the use of illegal drugs can result in deportation of a permanent resident. So can a conviction related associated with sexual conduct by a young adult with a person who is a minor. Indeed, many immigrants who have lived in the United States with their families as permanent residents since they were very young children have been deported after being convicted of crimes they committed as youth or young adults. Becoming a U.S. citizen can protect you and your children from deportation.

We are living in an unprecedented moment in history, and it feels like the rules of engagement in the world of immigration are changing by the day. I would not normally counsel clients (or anyone for that matter) to become a U.S. citizen. However, in these uncertain times, I think it’s very much worth looking into.

Tags: President Trump, Executive Order, Refugees, Muslims, Deportation, Removal, Citizenship, Naturalization.

Trump’s Executive Actions – Travel Advisory

imm_2To say that this past weekend’s events were extraordinary would be an understatement. Here’s a recap and the very latest on President Trump’s Executive Order (“EO”) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” In sum, the EO does six (6) primary things:

1. Suspension of U.S. Refugee Admissions Program. The EO suspends the U.S. Refugee Admissions Program for 120 days.

2. Ban on Syrian Refugees. The EO halts the processing and admission of Syrian refugees indefinitely until President Trump determines that sufficient changes have been made to ensure that the admission of Syrian refugees is in the national interest.

3. Ban on Entry of Nationals of Muslim-Majority Countries. The EO bans immigrant and nonimmigrant entries, for at least 90 days, for nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. Other countries may be added as well.

4. Requires In-Person Interviews for Most Nonimmigrant Visa Applicants. The EO suspends the Visa Interview Waiver Program, essentially requiring all nonimmigrant visa applicants to attend an interview unless an interview is statutorily exempt.

5. Screening of all Immigration Benefits. The EO directs federal agencies to develop screening standards and procedures for all immigration benefits to better identify fraud and detect whether a person intends to do harm in the United States.

6. Biometric-Entry Exit. The EO directs agencies to expedite the completion and implementation of a biometric (e.g., fingerprinting) entry-exit system that includes reporting requirements.

The EO was effective immediately. Chaos ensued as foreign nationals were detained at airports around the world, pulled off planes set to depart to the United States, or otherwise had their visas cancelled. Advocacy groups sued, and people all over the United States rallied in opposition to this EO. (As you will recall, there were two other EO’s issued by President Trump earlier last week.)

On Saturday, a federal judge in the Eastern District of New York issued an order, granting a nationwide stay of removal preventing deportation for individuals with valid visas and approved refugee applications affected by the EO. Later, a federal court in Massachusetts issued a decision which barred federal officials from detaining or removing individuals subject to the EO.

There are so many questions and concerns that my colleagues and I have about this EO (and the others too), and of course there’s little to no clarity coming out of the White House. (Indeed, there’s contradicting information coming out of the White House and the Department of Homeland Security on some issues, including whether the EO applies to lawful permanent residents, i.e., Green Card holders).

So, where does that leave us? It’s way too early to tell as the situation is very fluid. However, I am advising my clients who might be affected by the EO (and frankly many others as well as there is not a lot of clarity on important issues, e.g., how this effects dual nationals where one nationality is of a Muslim-majority country) to refrain from traveling outside of the United States. Plain and simple, if you don’t have an urgent or compelling reason to travel outside the United States, then don’t.

Could Donald Trump Legally “Ban Muslims from Entering US”?

muslim preacherA little substantive law for this piece.

In the wake of the tragic events in both Paris and San Bernardino, Donald Trump raised the rhetoric, proposing not only to deport 11 million undocumented immigrants, but to also ban Muslims from entering the United States.  In the first television advertisement of his campaign, the narrator of Mr. Trump’s ad states that Mr. Trump is “calling for a temporary shutdown of Muslims entering the United States, until we can figure out what’s going on.”[1]  (This verbiage was somewhat of a back-peddling from his earlier remarks for a “total and complete shutdown” of Muslims entering the United States.) New Jersey Governor Chris Christie also has a plan to bar Syrian refugees for the sake of national security.

In my opinion, and I am sure there are some of you who would disagree with me, Mr. Trump’s plan is un-American, inflammatory, and frankly stupid.  But is a ban on Muslims entering the United States legal?  Maybe, but I think the courts would have a field day with it.

Right out of the gate, most constitutional scholars loudly stated that a ban on Muslims from entering the United States would discriminate against a class of people based on their religion (not to mention to punish an entire class of people who have done nothing wrong).  Certainly such a ban would violate constitutional guarantees of “due process of law” and “equal protection” for Muslim-Americans.

But what about those who are not U.S. citizens?

I don’t think anyone would argue that the United States, as a sovereign nation, has the authority to decide who may enter the country, and the conditions for entry by those who seek it.  Most of this power lies with Congress, in its “plenary” power to control admission to the United States, how long a noncitizen is able to stay, and under what circumstances.

The Fifth Amendment of the U.S. Constitution provides that no person shall be “deprived of life, liberty, or property, without due process of law.” [2] The “due process” clause does not “acknowledge … any distinction between citizens and resident aliens.”[3]  This protection extends to U.S. citizens and noncitizens alike, provided that they have sufficient ties to the United States.[4]  So, noncitizen Muslims who are presently in the United States would seem to be protected.  Those outside the United States, perhaps not so much.

What about the “equal protection” clause in the Fourteenth Amendment?  The Fourteenth Amendment forbids the states from denying any person “equal protection” under the law.  In 1886, the Supreme Court held that the “equal protection” clause is “universal in [its] application, to all persons within the territorial jurisdiction [of the United States], without regard to differences of … nationality.”[5]  More recently, in 1954, the Supreme Court held that this guarantee of equal protection is implicit in the Fifth Amendment’s “due process” clause.[6]

So, the Fifth Amendment limits the federal government, and the Fourteenth Amendment limits the states.  Again, it would seem that noncitizen Muslims who are in the United States are generally entitled the same protection under the law as U.S. citizens.  But those outside the United States, that’s much less clear.

What about other grounds?  Some constitutional scholars have argued Mr. Trump’s ban on Muslims would violate the First Amendment’s “establishment” clause. That provision forbids Congress from establishing an official religion.  The argument goes that Mr. Trump’s policy would essentially require that the federal government make a determination as to who is really Muslim in order to know who to exclude from our borders, and that the “establishment” clause prevents the government from making these types of decisions.

If Congress were ever to take such a drastic step, and the issue thereafter reached the courts, it would be interesting to see what would then happen.  The courts are required to apply “strict scrutiny” to all government actions that tend to discriminate on the basis of a “suspect class” (e.g., race) or upon a fundamental right (e.g., religion).  Because strict scrutiny would apply, the courts will presume that such a law is unconstitutional, and the burden will then be on the government to provide a “strong basis in evidence” that shows the law achieves a “compelling” national interest and that the law is “narrowly tailored” to accomplish that goal.

Surely protecting against terrorism is a compelling national interest, but would such a law be the least restrictive means in order to do so?  I’m not convinced.

One of the most famous Muslims (perhaps in the world) recently said of Mr. Trump’s inflammatory remarks, “True Muslims know that the ruthless violence of so called Islamic Jihadists goes against the very tenets of our religion.”  Going on, this individual said that he believes “that our political leaders should use their position to bring understanding about the religion of Islam and clarify that these misguided murderers have perverted people’s views on what Islam really is.”  Who was that?  Muhammad Ali (a/k/a Cassius Clay).  I could not agree more.  Instead of Congress passing legislation to prevent Muslims from entering the United States, we should simply tone down the inflammatory rhetoric and educate ourselves as to what’s really going on here.  Pure politics.  Just a thought.

[1] The narrator goes on to say that Mr. Trump will “stop illegal immigration by building a wall on our southern border that Mexico will pay for.”  I’ll save my commentary on this one for another day.

[2] U.S. Const. amend. V.

[3] Kwong Hai Chew v. Colding, 344 U.S. 590, 598 n.5 (1953).

[4] See Verdugo-Urquidez v. United States, 494 U.S. 259, 270-71 (1990) (“[A]liens receive constitutional protections when they have come within the territory of the United States and developed substantial connections with this country.”). However, aliens who are outside the United States are generally not afforded this constitutional protection. Id. at 269 (“[W]e have rejected the claim that aliens are entitled to Fifth Amendment rights outside the sovereign territory of the United States.”) But see Ibrahim v. Department of Homeland Security, 669 F.3d 983, 997 (9th Cir. 2012) (an alien not currently in the country, but who had been lawfully present in the United States for four years before departing the country and who was latter prevented from returning, had established a “significant voluntary connection” to the United States sufficient to assert claims under both the First and Fifth Amendments).

[5] Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886).

[6] Bolling v. Sharpe, 347 U.S. 497 (1954).

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