Crimes of Moral Turpitude

If the client is a United States citizen, no ground of inadmissibility or deportation can be lawfully applied.[2]  The person may have acquired citizenship by birth, if at least one natural parent was a United States citizen at the time s/he was born, even if s/he was born outside of the United States.[3]  The person may have acquired “derivative citizenship,” if s/he was an unmarried lawful permanent resident under the age of 18 at the time both parents (or the sole custodial parent) naturalized, or under the LIFE Act if one parent naturalized after Feb. 27, 2001, or by adoption.  If so, s/he may have become a U.S. citizen without knowing it.[4]  The person may also have acquired U.S. citizenship by naturalization or by birth in the United States.  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § § 3.13-3.20.

A small group of people may be “nationals” of the United States,[5] and therefore not subject to removal.  Two courts have held that a long-term lawful permanent resident who has filed an application for United States citizenship may be considered a “national” of the United States.[6]  However, the Board of Immigration Appeals, and other courts that have reached the issue, have rejected this definition, and limit “nationals” of the United States to persons who have naturalized, or who were born within a United States territory (such as American Samoa and Swains Island).[7]  See N. Tooby & J. Rollin, Criminal Defense of Immigrants § 3.18 for more information.  Certain Native Americans born in Canada may also be able to demonstrate that they cannot be subject to removal under the Jay Treaty of 1794.[8]  See N. Tooby &  J. Rollin, Criminal Defense of Immigrants § 3.19 for more information.

[2] Costello v. INS, 376 U.S. 120 (1964) (person who was convicted of two crimes involving moral turpitude while he was a United States citizen cannot be deported on account of them after he lost his citizenship through denaturalization).  However, this does occasionally happen.  See, 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 mounts 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).

[3] The formulae for determining the citizenship of the child of one or more parents, who were U.S. citizens when the child was born, are described in I. Kurzban, Kurzban’s Immigration Law Sourcebook 1113 (2007).  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.  Ibid.

[4] The formula for determining the citizenship of an unmarried lawful permanent resident minor whose parents both naturalized prior to his or her 18th birthday is described in I. Kurzban, Kurzban’s Immigration Law Sourcebook 1111 (2007).

[5] INA § 101(a)(22), 8 U.S.C. § 1101(a)(22) (defining “national” as “a person who, though not a citizen of the United States, owes permanent allegiance to the United States.”).

[6] United States v. Morin, 80 F.ed 124, 126 (4th Cir. 1996); Asemani v. Iran, 266 F.Supp.2d 24 (D.D.C. Apr. 23, 2003).

[7] See, e.g., Alwan v. Ashcroft, 388 F.3d 507 (5th Cir. Oct. 18, 2004) (registering with the Selective Service, taking oath of allegiance, and applying for derivative citizenship, without a grant of such application, is insufficient to confer "national" status); Perdomo-Padilla v. Ashcroft, 333 F.3d 964 (9th Cir. June 23, 2003) (filing  application for naturalization does not change an applicant’s immigration status from that of a noncitizen to that of a national); Matter of Navas-Acosta, 23 I. & N. Dec. 586 (BIA 2003) (same).

[8] INA § 289, 8 U.S.C. § 1359.