Tooby's California Post-Conviction Relief for Immigrants

 

A person may have acquired citizenship at birth from his or her parents if one or both natural parents was a United States citizen at the time s/he was born, even if s/he was born outside the United States.[44]  It is also possible that the defendant’s grandparents were U.S. citizens, thus transmitting U.S. citizenship to the defendant’s parents, who in turn transmitted it to the child.  The rules on acquired citizenship vary, and are generally based upon the law as it existed at the time of the person’s birth.  At least one court has found that acquired citizenship does not require a blood relationship, only parentage through marriage.[45]  There are tables on acquired citizenship that lay out the sometimes-complicated rules.[46]  Courts will entertain claims of derivative citizenship.[47]

 

            This can arise much more frequently than might be thought.  Millions of people have been illegally deported from the U.S. by using local law enforcement as immigration officers.[48]  “In California alone, approximately 400,000 American citizens and legal residents of Mexican ancestry were forced to go to Mexico … beginning in 1929. . . .  In total it is estimated that two million people of Mexican ancestry were forcibly relocated to Mexico, approximately 1.2 million of whom had been born in the United States, including the State of California.”[49]  The children of all of these U.S. citizens who were illegally deported to Mexico may well be United States citizens themselves.

 

            Unfortunately, the illegal deportation of United States citizens continues to some extent even today.  Occasionally, persons are placed in removal proceedings, and even removed, though they are United States citizens.[50]

[44] INA § § 301(c), (d), (e) & (g), 301a, 303, 8 U.S.C. § § 1401(c), (d), (e), & (g), 1401a, 1403; and INA § 309, 8 U.S.C. § 1409 (child born out of wedlock). 

[45] Scales v. INS, 232 F.3d 1159 (9th Cir. 2000) (child who is “legitimate” by virtue of his parents being married at the time of his birth under state law, but who may not be the biological child of the citizen parent, can acquire U.S. citizenship).

[46] See, e.g., I. Kurzban, Kurzban’s Immigration Law Sourcebook 1110 (2006); Naturalization: A Guide for Community Advocates (ILRC, 1663 Mission St., Suite 603, San Francisco CA 94103); D. Levy, U.S. Citizenship and Naturalization Handbook (West Group 2000); B. Hing, Handling Immigration Cases (Federal Publications); National Lawyers Guild, Immigration Law and Defense (West Publishing 2007); the multi-volume Mailman, et al., Immigration Law and Procedure (Matthew Bender 2007); Mautino, Acquisition of United States Citizenship, Bender’s Immigration Bulletin, Vol. 6, No. 1 (Jan. 2001).

[47] See, e.g., Matter of Rowe, 23 I. & N. Dec. 962 (BIA 2006) (where a noncitizen was born out of wedlock and paternity was never established under the law of the country in which his parents resided, his paternity has not been established by legitimation, so he is not ineligible to obtain citizenship under former INA § 321(a)(3), 8 U.S.C. § 1432(a)(3)).

[48] F. Balderama & R. Rodriguez, Decade of Betrayal (2004). 

[49] California Government Code § 8721(b), (c).

[50] E.g., Diaz v. Reno, 40 F.Supp. 2d 984 (N.D. Ill.1999) (U.S. citizen who had been ordered summarily excluded from the United States raises several claims related to summary exclusion after returning to the United States); Fierro v. INS, 66 F. Supp. 2d 229 (D. Mass. 1999) (court enjoins removal of individual pend­ing resolution of claim to United States citizenship).