Monday, August 5, 2019

Schroedinger's Citizen

"For the foregoing reasons, the Department is prepared to conclude Juan acquired U.S. citizenship automatically under INA Section 321, 8 USC §1432 on April 26, 1988." -- Memo of July 8, 2019

links to Juan's memo and previously unreleased State Department Memorandums interpreting 8 U.S.C. 1432 below

courtesy of Wikipedia
On July 8, 2019, the State Department announced that a deported alien was a U.S. citizen and would be issued a U.S. passport.  Juan had been waiting for this news for thirty years, over a decade of them in exile from his home and family.

Juan was born in Colombia.  When he was two years old he moved with his parents to Miami as a legal resident.  In 1987, when he was 11, Juan's mother naturalized.  Shortly thereafter his parents divorced. Juan received a notice from US Citizenship and Immigration Services giving him an appointment slot for receiving his Certificate of Citizenship.

Juan figured the government set up the appointment for his Certificate because the official who organized his mother's naturalization knew she had a son and the son was a legal resident and had derived U.S. citizenship via his mother's naturalization.  (Juan's brother was born in the United States and his father was a legal resident who did not naturalize.)

Juan showed up at the federal building in Miami with a relative, but his name was not on the list.  He showed his appointment card to an official.  She asked to see his mother, who was not with him. He went home and figured they'd sort it all out later. 

After Juan turned 18 he submitted an N-400.  And then another, and another, and another. He told me, "Apparently for some odd reason my A-file never left its repository.  The INS officials could never give me a clear explanation of what went wrong."  (An N-400 is the form for legal residents who want to become naturalized U.S. citizens.  You have to take a civics test most people born here would flunk and go through a criminal background check.  If you are already a U.S. citizen, as the State Department now recognizes was the case for Juan, it's like completing all the coursework through the twelfth grade with passing grades and then signing up for the G.E.D. instead of just filling out the paperwork for your diploma, the equivalent of which for a Certificate of Citizenship is the N-600.)

In 1996, when Juan was 21, Drug Enforcement Agents nabbed him for transporting $275,000.  They released him after the confiscation of the currency.  

Juan obtained a degree in Electronics and Engineering Technology in 2002 and worked in that industry until 2006, when he once again attempted to procure his Certificate of Citizenship through an N-400.  The examiner explained that he also was eligible for "derivative citizenship."  Juan says:
 I had no idea what she meant by the terms 'derivative citizenship,' so I just told her to proceed with the N-400.  Out of all the mistakes that the government has made, this seems to me by far the most crucial and devastating.   The examiner should have went through the path of derivative citizenship and not offer me another option.
The 2006 visit to the federal building entailed fingerprinting.  This alerted the feds to Juan's prior arrest and upon leaving the examiner's office he was charged with money laundering and taken into custody.

Juan served his sentence of one year and one day, reduced by the judge from the plea deal he had accepted for four years.   

In December, 2006, Juan was driven five hours from an ICE facility in New Mexico to the El Paso Processing Center.  He told me that in the courtroom, before the hearing officer arrived, the ICE attorney "approached us and said 'Hey, Juan, I know you're a U.S. citizen.   I have all the evidence and you satisfy the conditions. I'm not going to object to the evidence you provided.   The last thing I need is a civil suit for deporting an American citizen.'"  

But a few minutes later, the hearing officer, Thomas Roepke, ordered Juan deported.  "The IJ claimed that I was removable due to the fact that my mother did not have sole legal custody.  My lawyer, the DA [ICE trial attorney], and myself were shocked to hear the outcome."

Juan remained only a month in Colombia.  "I feared for my life.  My mother was kidnapped in Buga, 1997."  Juan still does not know what became of her.  "Her husband was found dead about two weeks later."  Juan moved to Germany with his brother, who was in the U.S. Army.

A few weeks ago Juan received a phone call from the U.S. Embassy in Madrid.  A consular official told him, "Things have changed, Juan, for the better."  Soon after, Juan obtained his U.S. passport. 

The State Department's analysis lays out how this happened.  It is a model of legal clarity.  The official quotes from the relevant case law, administrative decisions, and memorandums on derivative U.S. citizenship.  Juan wanted me to post the letter in its entirety because he knows it will help many others who find themselves in this situation.  (It will be especially helpful to folks in the Eleventh Circuit who were under 18 when just one parent naturalized and their parents divorced and had joint custody.)

Ambiguous Categorical Representations
"Schroedinger's Cat" is a thought experiment created in 1935 by physicist Erwin Schroedinger to illustrate what he claimed was the paradoxical absurdity of a potential condition that simultaneously has two mutually exclusive attributes, e.g., a cat being alive and dead. Citizenship law reflects this. At any given point one either is or is not a U.S. citizen. And yet, consider the following regulation:
 An alien whose claim to lawful permanent resident, refugee, asylee status, or U.S. citizen status cannot be verified will be advised of the penalties for perjury, and will be placed under oath or allowed to make a declaration as permitted under 28 U.S.C. 1746, concerning his or her lawful admission for permanent residence, admission as a refugee under section 207 of the Act, grant of asylum status under section 208 of the Act, or claim to U.S. citizenship.  A written statement shall be taken from the alien in the alien's own language and handwriting, stating that he or she declares, certifies, verifies, or states that the claim is true and correct. From 8 CFR § 235.3 - Inadmissible aliens and expedited removal.
Of course if "the alien"  is a U.S. citizen, then a U.S. citizen is verifying her U.S. citizenship.  Like Schroedinger's cat, the alien of the regulation may be a citizen, and not even a dual citizen, in the case of those who are born in the United States and have been deported, such as Pedro Guzman, Mark Lyttle, and Roberto Dominguez.

Subsequently, philosophers argued such a scenario was not at all absurd.

Paradoxes about knowledge are abstract.  The legal analysis of the meticulously documented 13-page single-spaced memorandum is concrete:
Although the Property Settlement Agreement attached to the final Order of Dissolution provides for 'shared parental responsibility' for the children (Juan and his sibling), which falls afoul of the sole legal custody requirement announced in Bustamante-Barrera, 1) the Department maintains that the legal custody requirement of former INA 321(a)(3) is satisfied even if the parents are awarded joint custody (See TABS 11 and 16); and 2) two DHS/USCIS Administrative Appeals Office (AAO) opinions (albeit one non-precedential) have since concluded that Bustamante-Barrera does not apply in the 11th Circuit which is where the events giving rise to Juan's citizenship claim under INA 321 took place (specifically, Juan's mother's naturalization, the dissolution of the marriage of Juan's parents and Juan thereafter residing as a legal permanent resident with his mother in Florida after the dissolution of his parents' marriage on April 26, 1988 when he was 12 years old.
TAB 11 refers to a 1996 State Department Passport Memorandum 96-18.   The Memorandum suggests that the interpretation of custody by the Department of State goes back to the previous version in 1993.
Legal Custody
The  Department  has  not  changed  its  interpretation  of  what  constitutes  'legal  custody[.]'  As  stated  in  the  referenced  Bulletin,  in  cases  where  the  divorce  or  separation  decree  does  not  specify  who  has  custody  and  the  naturalized  parent  has  physical  custody,  the  child  can  be  documented  as  a  citizen  under  Section  321(a)(3)  provided  that  all  other  conditions  of  the  law  are  met.  Section  321  does  not  require  sole or exclusive legal custody. If the parents have a joint custody  decree,  then  both  parents  have  legal  custody.  Thus,  the  naturalization  of  either  parent  would  be  sufficient  to  satisfy  the  Section  321(a)(3).  If  there  is  a  specific  question  about  the  sufficiency  of  legal  custody  evidence,  OCS, PPT and INS agree that we should review the matter on a case by case basis. (Emphasis added.)
As State notes in its recent memorandum, this interpretation since 1993 conflicts with the decision in Bustamante-Barrera v. Gonzalez, 447 F.3d 388 (5th Cir. 2006).

One thought would be that the statutory interpretation of the Fifth Circuit supersedes an agency.  The agency seems to concede this is the case for the Fifth Circuit and the Ninth Circuit, which cited Bustamante-Barrera and decided similarly in U.S. v. Suchite-Casola 670 F. 3d 1023 (9th Cir. 2012).  Memo pp. 5 - 7.

Bustamente-Barrera did not consider the State Department Passport Memorandum.  Suchite-Casola did:
We must conclude that the non-precedential, BIA statutory interpretations are not worthy of any deference, because they conflict with the words and obvious meaning of the statute. See Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir.2004) (refusing to grant any deference when the agency decision was "contrary to the plain and sensible meaning of the statute" and would lead to an irrational result). Indeed, the only authority cited by the BIA from the time § 1432(a) was in effect is an unpublished 1996 Passport Bulletin issued by the State Department, an agency that does not enforce these immigration laws. The BIA's additional reliance on regulations later adopted by the Department of Homeland Security to implement the CCA is unpersuasive, because the CCA superseded the controlling statute in this case. Rather than follow unpublished, BIA decisions unworthy of deference, we instead give the statute a sensible interpretation and thereby agree with the only circuit decision that has addressed this issue, the Fifth Circuit's decision in Bustamante-Barrera, 447 F.3d at 395-96.
A couple thoughts.  First, the authority for this interpretation is not solely the 1996 Passport Bulletin.  As quoted above, the 1996 Bulletin actually references back to an earlier version of the Bulletin, from 1993.  The State Department also reiterated this policy in 2013.   In other words, on at least three separate occasions State Department staff have interpreted the statute consistent with the plain text and to align with the needs of U.S. citizens.  This is the agency that is doing the hands-on work of implementing the law.   Typically judges defer to such practices unless they are clearly at odds with the text or absurd.  The State Department interpretation is neither. 

Here is the text in dispute.  It indicates that if the following criterion is met, a child under 18 who entered as a legal resident automatically derives U.S. citizenship by operation of law.
(3) The naturalization of the parent having legal custody of the child when there has been a legal separation of the parents...
Juan's mother naturalized.  Shortly thereafter his parents legally separated.  His mother had physical and legal custody of him, though it was joint legal custody.   The judges claim that State Department interpretation "conflict[s] with the words..." but the plain text does not support this claim.
Second, which interpretation is irrational?  One that separates U.S. citizen parents from their children, and siblings from each other, or one that keeps them together?  The judges in Buastamante-Barrera  and  Suchite-Casolaare are considering Schroedinger's citizens, i.e., the uncertainty and ambiguity of citizenship status, to be the "irrational result." The State Department officials are saying that what's really irrational is creating certainty by killing the cat.  To avoid this, the State Department is interpreting the law such that people who could be U.S. citizens - the law's plain text does not require sole custody of the naturalizing parent - are U.S. citizens. 

Third, as a matter of law,  Suchite-Casola seems to misstate the division of labor between the State Department and Homeland Security.  To the extent that Homeland Security enforces immigration law, as the Ninth Circuit opinion notes, it does so based on a prior finding of who exactly is a U.S. citizen. If the State Department and U.S. Citizenship and Immigration Services use criteria to define a U.S. citizen, then to enforce the law means not deporting U.S. citizens, and does not empower the agency to invent its own criteria.  If the courts are going to defer to any agency's interpretation of U.S. citizenship for those who are foreign-born, then it should be first to the State Department and then U.S Citizenship and Immigration Services.

Now that the cat is out of the bag, what happens next?  One thought is that many other wrongfully deported U.S. citizens will be able to make use of the State Department analysis here.  Another is that Trump apparatchik Mike Pompeo will want to deprive as many people as possible their U.S. citizenship and change the directive, even if it means a soldier in the U.S. army cannot live near his older brother, and the reversal would be at odds with over 25 years of policy, and prompt court challenges on several grounds, including for violating the Administrative Procedure Act.

Is the irrationality in U.S citizenship statutes their ambiguity, or that racist governments weaponize our complex biographies for scurrilous political agendas?  It is easy to be distracted by the confusion of birthright citizenship laws and their shifting standards of evidence.  Juan's ordeal persisted under the presidencies of Ronald Reagan, Bill Clinton, George Bush, Barack Obama, and Donald Trump, under whose leadership Juan finally was declared a U.S. citizen.

The real problem is birthright citizenship itself, jus sanguinis and jus soli, that is, the discrepancy between a citizenry produced capriciously through narratives of family history, birth, and lines in the sand irrelevant to good governance and a citizenry of those who distinguish themselves by vows to uphold the rule of law

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