US Citizenship Requirements

General Overview and Requirements to Obtain Citizenship and Naturalization

As mentioned above, there are two ways for a person to become a US citizen. The first is by operation of law where no specific act by the individual is required. This would include birth in the US, or birth abroad to US citizens or nationals. The second way is by naturalization.

The 14th Amendment to the United States Constitution provides that all persons born in the United States and subject to United States jurisdiction shall be citizens at birth. What is important is where the child is born, not the citizenship or residence status of the parents. Thus, a child born in the United States of illegal alien parents is still a United States citizen at birth. The only exception is that the child must be subject to the jurisdiction of the United States. Therefore, a child born to certain foreign diplomats or sovereigns are not US citizens at birth, since they are born while their parents are not subject to the jurisdiction of the United States since they are in the US as representatives of foreign governments.

There are also many instances when a child born outside of the United States is considered a citizen at birth. For instance, if a child is born in an outlying possession of the United States (which includes American Samoa and Swains Island), or in a US territory, such as Puerto Rico, Guam, the US Virgin Islands, etc., they may be considered US citizens at birth.

Furthermore, the law on acquisition of United States citizenship at birth has changed numerous times over the years, most recently with the Child Citizenship Act of 2000, which became law on October 30, 2000. Under this act, any foreign-born child under the age of 18 who has one citizen parent, resides in the custody of that citizen parent, and is residing in the US as a permanent resident automatically becomes a citizen. The law applies to both natural and adopted children. The law also allows citizen parents to petition for the naturalization of non-citizen children who do not reside in the US.

What about dual citizenship? This arises when a person is considered a citizen of two or more countries at the same time. The United States does not favour the concept of dual citizenship and, in fact, when a person is naturalized in the United States, they are required to renounce any and all other citizenships which they may have. However, there are situations when a US citizen can also be a citizen of another country. This usually occurs in cases where the foreign country does not require its nationals to renounce its citizenship when that person is naturalized in the United States, or where a person is born in the United States of parents who are nationals of other countries, which base their citizenship on parentage. Thus, in such a case, the person is a citizen of the United States by birth in this country, and a citizen of the foreign country by virtue of the nationality of the child's parents.

As mentioned above, the second method to obtain US citizenship is through naturalization. In order to be naturalized, the first requirement is that the applicant be a lawful permanent resident of the United States. An exception exists for those who served honourably in the US armed forces in times of war. The second requirement is that the applicant must be at least 18 years of age at the time of filing the application for naturalization. Again there is an exception for those who served honourably in the US military during times of war, as well as for minors who have at least one US citizen parent who petitions for them.

The next prerequisite is that the applicant must have satisfied certain residency requirements. Initially, the applicant must have been physically present in the US for at least half of the required residence time preceding the date of filing the application. The statutory residence time is five years, unless naturalization is based on marriage to a US citizen in which case it is only three years. (In this situation, the alien must have been a resident for at least three years and must have been married to, and living with, the US citizen spouse for at least three years.) A person is permitted to file their application for naturalization three months prior to meeting the physical presence requirement.

In addition to the above, an applicant must not have abandoned their physical presence in the United States. If a person remains outside the United States for one year or more, then they have broken their continuous residence for naturalization purposes. It does not matter that the person had permission to be outside of the US, such as with a US re-entry permit. The only exceptions are for those serving in the US armed forces, with certain US government agencies, as religious workers, or with certain international groups. In these cases, the applicant must have filed an application to preserve residence for naturalization on US immigration form N-470. This application can only be approved if the person had been physically present in the US, as a permanent resident, for at least one year, prior to filing the application, and it must be filed before the person has spent one year abroad. If the applicant is absent for more than six (6) months, but less than one (1) year and then there is a rebuttable presumption of abandonment of continuous residence for naturalization purposes.

The alien would have to show that he or she did not intend to abandon their permanent residence and that there were valid reasons for their extended periods outside of the US. If the absence is six months or less, then there is no break in the continuous residence requirement.

Also, the applicant must reside within the state or within the US immigration district where the application will be filed for at least three months immediately preceding the filing of the application.

In addition to the residence requirements, the applicant must also be a person of good moral character during the statutory period (3 or 5 years), and it must continue from the time of filing the application through the swearing-in ceremony. The term "good moral character" is not specifically defined in the US immigration Act; however, the courts have interpreted it to mean behaviour those measures up to the standards of the average members of the community. The US immigration Act, in section 101 (f), does list certain offenses that would preclude an applicant from establishing good moral character. These would include such crimes as murder, aggravated felonies (which are more fully described in the section under deportation grounds), certain gambling and drunk-driving offenses, prostitution offenses, etc. An applicant may also be found not to be a person of good moral character if he or she wilfully failed to support dependents, committed adultery, which destroyed a viable marriage, or wilfully and knowingly failed to register with the Selective Service, if required to do so.

An applicant must also be attached to the principals of the Constitution and be favourably disposed to the good order and happiness of the United States.

A person may take a modified oath provided his or her reason for doing so is due to deeply held religious or moral beliefs, which limit his or her willingness to bear arms and/or perform non-combatant services in the US armed forces.

Certain classes of persons are barred from naturalization. These include subversives; deserters from the US armed forces; those with a pending or final order of deportation (an exception exists for those who served honourably in the US armed forces for a period of three years or during times of war); and aliens who applied for and received an exemption or discharge from training or service in the US armed forces.

Applicants for naturalization must also be able to read, write, and speak the English language. Persons who are physically unable to comply due to a permanent physical or developmental disability, or permanent mental impairment are exempt from the literacy requirements. In addition, applicants who are more than 50 years of age and have been permanent residents of the United States for more than 20 years, or are more than 55 years of age and have been permanent residents of the United States for more than 15 years, as of the date of filing the application, may be examined in their native language rather than English.

All applicants are required to pass an oral test on the history and government of the United States. From a standardized list of approximately ninety-five (95) questions, ten (10) questions are asked, and the applicant must answer at least six (6) correctly.

Procedure for Filing & Interview

To obtain naturalization, an applicant must file US immigration form N-400, together with supporting documentation, including photographs, and evidence of lawful permanent residence, with the US immigration regional service center office having jurisdiction over the place of the applicant's residence in the United States. The appropriate filing fee must accompany the application, together with a separate fingerprinting fee. As stated previously, the application may be filed up to three months before the applicant meets the residency requirements.

The application is then processed by the regional service center. The applicant will be scheduled to have fingerprints taken at an US immigration-fingerprinting center. The fingerprints are then forwarded to the FBI for background checks, while the US immigration service requests the original alien file of the applicant. When the fingerprint checks have cleared and the original file is located, the applicant is scheduled for an interview at the US immigration office located closest to his or her place of residence in the United States. The processing time can take anywhere from six months to one year or more depending on the caseload of the individual US immigration office.

At the naturalization interview, an US immigration examiner will review the application with the applicant for completeness and correctness, and will test the applicant on his or her knowledge of US government and history, as well as their ability to speak, read, and write the English language. The examiner will also determine whether the applicant meets all of the requirements for physical presence and good moral character, and if they are otherwise eligible to be naturalized. An applicant who fails the exam may request to be re-tested within 90 days of the first interview.

If the applicant passes the examination, and is otherwise qualified, the application will be approved and the applicant will be scheduled for his or her swearing-in ceremony. If the examiner is unable to make a decision on the application during the initial interview, the applicant will be scheduled for a follow-up interview, which must be scheduled within 120 days. If the examiner denies the application, either during the initial or second interview, a written decision will be issued and the applicant will have 30 days in which to file an appeal. Another US immigration examiner within the same office will review the case. The US immigration service must make a decision on the appeal within 180 days. Usually the applicant will be re-interviewed and given the opportunity to present any other evidence to support his or her case. If the application is again denied, or if no decision is issued within the 180 days, the applicant may seek review in the federal district court. The US immigration service may also deny the applications of those who fail to attend their swearing-in ceremonies.

Persons who are sworn in as US citizens are immediately eligible to enjoy all of the benefits of citizenship, including the right to apply for a US passport, the right to vote in federal and state elections, the right to petition for family members to join them in the United States, the right to serve on juries, the right to receive federal assistance, and the right to apply for most federal jobs.

Deportation & Removal Proceedings and Asylum

The most significant changes contained in the US immigration Act of 1996 concern those in the area of deportation and exclusion. In fact, the new act removes the terms deportation and exclusion and replaces them with a new term known as "removal proceedings". In the past there had been a distinction between the status of an alien who had physically entered the United States (whether legally or illegally), who would be subject to deportation proceedings, and that of an alien who was apprehended at the border, prior to entry to the United States, who would be subject to exclusion proceedings. However, the new act does away with these distinctions for the most part, and now uses the term removal proceedings to describe those whom the US immigration service wishes to expel from the United States.

The US immigration act still distinguishes between those aliens who are inadmissible to the United States, and those who are in the United States and subject to deportation. Section 212 of the US immigration & Nationality Act lists ten (10) general classes of aliens who are ineligible to receive visas and are ineligible for admission to the United States. Section 237 of the Act lists the general classes of aliens who are deportable from the United States. These contain six (6) main classifications, within which are contained numerous sub-classifications. Both sections 212 and 237 are described in much greater detail in the following portions of the manual.

General Overview of Grounds of Inadmissability and Deportation

For many aliens, their first encounter with the US immigration service is when they are arriving at a port of entry to the United States. This can be an airport, a seaport, or a border crossing point. Whenever an alien attempts to enter the United States, he or she must convince the US immigration officer that the purpose of the entry is lawful, complies with the type of visa that they are carrying, and that they are otherwise admissible to the United States. In other words, if they are not admissible, because of one of the grounds of inadmissibility contained in section 212 of the US immigration Act, they will not be permitted to enter the United States.

At this point we will discuss the general grounds of inadmissibility. We will also discuss any waivers that may be available for each. The grounds of inadmissibility are as follows:

• (1) Health related grounds: This includes those who have certain communicable diseases such as tuberculosis, and sexually transmitted diseases including the HIV virus and AIDS. A waiver is available to an alien who is the spouse or the unmarried son or daughter, or the minor unmarried lawfully adopted child, of a United States citizen, or of an alien lawfully admitted for permanent residence, or of an alien who has been issued an immigrant visa, or has a son or daughter who is a United States citizen, or an alien lawfully admitted for permanent residence, provided they comply with any requirements of the appropriate health department, including the posting of any bond that may be required. In addition, the US immigration Reform Act of 1996 now requires all persons who are seeking permanent residence in the United States to be vaccinated for a variety of illnesses, including polio, mumps, measles, etc. If the appropriate vaccine were received, then the ground of inadmissibility would be removed. Furthermore, an alien who is determined to have, or in some cases, have had, a physical or mental disorder and behaviour associated with the disorder that may pose, or has posed, a threat to the property, safety, or welfare of the alien or others, is inadmissible, but a waiver is available upon complying with the requirements of the health department and posting the appropriate bond. Drug addicts and drug abusers are inadmissible, and no waivers are provided for under the act.
• (2) Criminal and Related Grounds: An alien who has been convicted of a crime involving moral turpitude, or of a violation of (or a conspiracy or attempt to violate) any law or regulation of a state, the United States, or a foreign country relating to a controlled substance is inadmissible. Likewise, any alien convicted of two or more offenses, even if they did not involve moral turpitude, is inadmissible if the aggregate sentences to confinement actually imposed were 5 years or more. An alien who the consular or US immigration officer knows, or has reason to believe, is or has been an illicit trafficker in any controlled substance is inadmissible. Additionally, any alien who is involved in prostitution or commercialized vice is inadmissible. An alien inadmissible on criminal grounds may be granted a waiver under section 212(h) of the US immigration and Nationality Act if the alien is the spouse, parent, son or daughter of a citizen of the United States or an alien lawfully admitted for permanent residence; can establish that the US citizen or lawful permanent resident relative will suffer extreme hardship if the waiver is not granted; and that the admission of the applicant would not be contrary to the national welfare, safety, or security of the United States. In addition, if the crime was committed more than 15 years before seeking admission, the alien need only show rehabilitation and that the admission of the alien would not be contrary to the national welfare, safety, or security of the United States. The waiver application is filed on US immigration form I-601, together with a filing fee, and proof of the qualifying relationship. Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted. Under the US immigration Reform Act of 1996, no waiver may be granted under this section if the alien had previously been admitted to the US as a permanent resident, and since said date had been convicted of an aggravated felony, or the alien had not resided lawfully in the US for at least seven (7) years.
• (3) Security and Related Grounds: This ground of inadmissibility relates to any alien who seeks to enter the United States to engage in espionage, to import or export any illegal security items, who seeks the overthrow of the US government, who has or seeks to engage in terrorist activities, whose actions will have serious foreign policy consequences for the United States, is a member of a totalitarian party, or participated in Nazi persecution or genocide.
• (4) Public Charge: Any alien who, in the opinion of the consular officer at the time of application for a visa, or in the opinion of the Attorney General at the time of application for admission or adjustment of status, is likely at any time to become a public charge is inadmissible. The factors to be taken into consideration in determining whether an alien is likely to become a public charge include the alien's age; health; family status; assets, resources, and financial status; and any affidavit of support given on behalf of the alien.
• (5) Lack of Labor Certification: Any alien who seeks to enter the United States, on a permanent basis, for the purpose of performing skilled or unskilled labor is inadmissible unless he or she has first obtained a labor certification from the Department of Labor certifying that there is a shortage of workers in the alien's occupation in the part of the country where the alien will be employed. A labor certification is not necessary if the alien is entering pursuant to a petition filed in the family preference category, or on a non-immigrant visa, as an investor, or as a refugee. In addition to the above, certain aliens entering as medical doctors or health care workers are admissible only if they have first passed the required medical or health care exams and have an appropriate certificate evidencing such compliance.
• (6) Illegal Entrants and US immigration Violators: These include aliens who have entered the United States without admission or parole; those who have failed to attend a removal proceeding; those who have willfully misrepresented a material fact, or committed fraud in seeking entry to the US; or have falsely claimed US citizenship; or a nonimmigrant alien who has fraudulently obtained a public benefit; and stowaways and alien smugglers. A waiver exists for those who are present in the US without admission or parole if they can establish that they are a battered spouse or child. In addition, a waiver exists for those who have committed fraud, or have made a material misrepresentation, if the alien is the spouse, son, or daughter of a United States citizen or lawful permanent resident alien, and that the refusal of admission to the United States will cause extreme hardship to the citizen or lawfully resident spouse or parent of such alien. The waiver application is filed on US immigration form I-601, together with a filing fee, and proof of the qualifying relationship. Also, you must attach whatever evidence you have that extreme hardship will be caused to the US citizen or lawful permanent resident relative if the waiver is not granted.
• (7) Documentary Requirements: This class includes aliens seeking to enter as immigrants or non-immigrants who do not have the proper entry documents, including valid passports, visas, alien cards, etc. A waiver exists in cases of unforeseen emergencies; or where the alien is a citizen of a country that has a treaty with the US for admission of its nationals without the necessary documentation; or where the alien is proceeding in direct transit through the US.
• (8) Ineligible for Citizenship: Any alien seeking to enter as an immigrant who is permanently ineligible to citizenship is inadmissible. This includes those who have evaded the draft, but does not include those aliens who seek to enter the United States only as non-immigrants.
• (9) Aliens Previously Removed: This class of inadmissibility applies to those aliens who have been ordered removed from the United States. In general, they are ineligible to re-enter the United States for a period of five years following the removal order. The period is increased to twenty (20) years if it is a second removal, or it is a permanent bar if the alien was removed for the commission of an aggravated felony. This section also contains a ground of inadmissibility for aliens who are "unlawfully present" in the United States. The US immigration Reform Act of 1996 added this section, and it is considered one of the most extreme measures contained in the new act. This provision provides that any alien who was unlawfully present in the United States for a period of more than 180 days but less than 1 year, (after April 1, 1997), voluntarily departed the United States, whether under a removal order or not, and who again seeks admission within 3 years of the date of the departure or removal, or has been unlawfully present in the United States for one year or more, and who again seeks admission within 10 years of the date of such departure or removal is inadmissible. Unlawful presence means the alien's presence in the United States after the period of stay granted by US immigration, or if the alien is present in the United States, without being admitted or paroled. Several exceptions exist. These include minors under the age of 18; those who have filed a bona-fide application for asylum; those who qualify for the family unity program; battered women and children; and those who have filed a non-frivolous and timely application for extension of stay or change of status and have not been employed without authorization in the United States. In addition to all of the above, an alien who has been unlawfully present in the United States for an aggregate period of more than 1 year, or has been ordered removed and who enters or attempts to enter the United States without being admitted is inadmissible. A waiver is available under the three (3) and ten (10) year bars for an alien who is the spouse or son or daughter of a US citizen or permanent resident, and if it is established to the satisfaction of the US immigration service that the refusal of admission to such immigrant alien would result in extreme hardship to the citizen or lawfully resident spouse or parent of such alien. As with many other provisions of the new act, no court review of the US immigration decision is permitted.
• (10) Miscellaneous Provisions: There are several other classes of aliens who are deemed to be inadmissible. These include practicing polygamists; guardians who are required to accompany helpless aliens; international child abductors; unlawful voters; and former citizens who renounced citizenship to avoid taxation. In addition to the grounds of inadmissibility mentioned above, an alien can also be removed from the United States based on the grounds contained in Section 237 of the US immigration and Nationality Act, which is entitled "General Classes of Deportable Aliens". There are six (6) general grounds listed, which include the following:
  • 1. Aliens who were inadmissible at the time of entry or adjustment of status, or who have otherwise violated their status, such as those who have worked without authorization or have overstayed their time in the United States. Also included are aliens whose conditional residence status has been terminated, those who had engaged in alien smuggling, and aliens who have engaged in marriage fraud.
  • 2. Aliens who have been convicted of a crime involving moral turpitude committed within five years after the date of admission, where the maximum sentence, which could be imposed for the crime, is one year or longer, are deportable. Likewise, an alien who at any time after admission is convicted of two or more crimes involving moral turpitude is deportable. These deportation grounds also include aliens who are convicted of controlled substance violations (other than a single offense involving possession for one's own use of 30 grams or less of marijuana), as well as drug abusers and drug addicts, and those who have been convicted of any firearms violations. The new act also renders deportable those aliens who have been convicted of a crime involving domestic violence, stalking, or child abuse. Also, any alien who is convicted of an aggravated felony at any time after admission is deportable. An aggravated felony is described in Section 101 (a) (43) of the US immigration Act. These are crimes which the US immigration service considers particularly serious, and which will preclude nearly all forms of relief.
  • 3. An alien is deportable for failure to register a change of address (unless the alien establishes that such failure was reasonably excusable or was not wilful); for any conviction related to the use of false documents; or for falsely claiming US citizenship.
  • 4. An alien may also be deported for a violation of security and related grounds such as terrorist activities, engaging in actions that could have potentially serious adverse foreign policy consequences for the United States, and if he or she has engaged in Nazi persecution or genocide.
  • 5. Any alien who becomes a public charge within five (5) years of entry, from a cause that did not arise after entry, is also deportable.
  • 6. Finally, any alien who has voted in violation of any Federal, State, or local law is deportable.

Now that you know the reasons why the US immigration service may arrest you and deny entry to the US, or may seek your deportation from the US, it is important to know whether you can obtain a bond to be released from US immigration custody, as well as your rights to contest the decision made by the US immigration officer.

Detention and Bond

When discussing the right to an US immigration bond, you must understand the difference between an alien who has been admitted to the United States and one who is simply an applicant for admission. The new US immigration act describes applicants for admission as those who are arriving in the US as well as those present in the US who were not admitted.

What happens to an alien who arrives at a port of entry and the US immigration officer believes that he or she is inadmissible? One of the most controversial provisions of the new US immigration act provides that certain aliens who attempt to enter the US by fraud or misrepresentation, or who arrive without valid documents, may be removed under an expedited process without a further hearing. The alien is no longer permitted to have a hearing before an US immigration judge. This new rule, however, does not apply to those claiming to be lawful permanent residents, refugees, or asylees. In addition, those entering without proper documents, who indicate an intention to apply for asylum or express a fear of persecution, must be referred to an asylum officer to determine if the alien has a credible fear of persecution. An asylum officer, usually at an US immigration detention facility, will conduct these interviews.

For aliens who may be inadmissible on grounds other than false documents or misrepresentations, the US immigration service will usually detain these aliens at a detention facility until such time as they can be scheduled for a hearing before an US immigration judge. There is no right to a bond for persons seeking admission to the US, and they will be paroled from custody only in a few situations, such as medical emergencies. If an alien can establish a credible fear of persecution, then they will be eligible for parole. At the present time, the US immigration service intends to apply the expedited removal proceedings only to arriving aliens, and not to those inadmissible aliens found within the US.

Under current US immigration law, the US immigration service must take into custody any inadmissible alien who has been convicted of a crime involving moral turpitude, who has violated any law relating to a controlled substance, who has been convicted of two or more offenses where the total sentences to confinement imposed is more than five years, who has been convicted of any crime related to prostitution, or who has been involved in any terrorist activity. Likewise, a deportable alien must be taken into custody if convicted of one crime of moral turpitude committed within five years of his or her last entry if a sentence of one year or more was imposed, or if convicted of two crimes of moral turpitude committed at any time after entry, or if convicted of an aggravated felony, or if convicted of a drug or firearms offense, or is a drug abuser or addict, or if involved in terrorist activities.

For other aliens who have been admitted and have not been convicted of serious crimes, an US immigration bond is available. Usually the arresting US immigration officer, with the concurrence of a supervisor, will set a bond at the time of the arrest, in an amount of at least $1,500.00. The amount of the bond will depend upon many factors including the seriousness of the US immigration ground of deportability, the length of time the alien has been in the United States, any family ties that the alien has in the United States, the possibility of any relief from deportation, etc. If the alien is satisfied with the bond, and has the means to post it, (either in cash or through a bail bondsman), it can be posted and the alien will be released from custody. The alien will be provided with a Notice to Appear, which is the official charging document in the case. (This will be discussed in greater detail in the next section.) In addition, the new US immigration act prohibits the grant of work authorization to the alien while he or she is on bond, unless the alien is lawfully admitted for permanent residence, or otherwise would be provided such authorization.

If the alien is not satisfied with the bond amount, or if no bond is set, he or she may request a hearing before an US immigration judge in order to set, or to redetermine the amount of, the bond. While waiting for a bond hearing, the alien will be detained in US immigration custody. During the bond hearing, the alien may be represented by an attorney. The alien and/or the attorney may present evidence on the alien's behalf, and they have the right to examine the documentation that the US immigration service uses at the hearing. The key determinations in deciding whether to grant bond, and in what amount, are whether the alien is a security risk and whether the alien is likely to appear at all future court and US immigration hearings. In that regard, the US immigration judge will look at the same factors that the US immigration officer looked at when making the initial bond determination. Either the alien or the US immigration service may appeal the bond decision of the US immigration judge. This appeal must be filed with the Board of US immigration Appeals.

US immigration Court Procedures and Aliens' Rights

The US immigration Reform and Control Act of 1996 does away with the distinction between deportation and exclusion proceedings, and replaces them with a new "removal proceeding." There are two classes of persons subject to removal proceedings: (1) aliens who were not admitted and, therefore, are inadmissible under Section 212 of the Act; and (2) aliens, who were admitted, but are now deportable under Section 237 of the Act. Admitted means the lawful entry of the alien into the United States after inspection and authorization by an US immigration officer.

Removal proceedings begin with the issuance of a Notice to Appear. The Notice to Appear will state the charges against the alien and the reasons why the US immigration service believes the alien to be deportable. It must be given in person to the alien or, if not practicable, through service by mail to the alien or to his or her attorney. The alien must provide the US immigration court with a written notice of any change of address or telephone number. The Notice to Appear will also explain to the alien the consequences of his or her failure to appear at all scheduled hearings, including the court's right to hold a hearing, and order deportation in the alien's absence, as well as the alien's right to be represented by an attorney of his or her choice, as long as it is at no expense to the government. A list of pro-bono attorneys, who can represent the alien at no cost, or low cost, will also be provided. The US immigration service will be represented by one of its attorneys known as a trial attorney. If an alien fails to appear at a scheduled hearing, (except under exceptional circumstances, such as a serious illness to the alien or death of an immediate family member), not only can an alien be ordered deported in absences, but he or she can also become ineligible for further relief in the future, such as voluntary departure, adjustment of status, and cancellation of deportation.

An alien must be given at least ten (10) days following receipt of the Notice to Appear, before a hearing can be scheduled. A hearing may take place with the alien present; or where agreed to by the parties, in the absence of the alien; or through video conferencing; or by telephone as long as the alien has been advised of the right to proceed in person or through a video conference.

At the hearing, the alien will be permitted to be represented by an attorney, as mentioned above. In addition, the alien will be given a reasonable opportunity to examine the evidence against the alien, (except for national security information), to present evidence on the alien's own behalf, and to cross-examine witnesses presented by the government. A complete record shall be kept of all testimony and evidence produced at the hearing.

The US immigration service has the initial burden of proving that the person in court is not a US citizen. If the service cannot prove this point, then the judge must dismiss or terminate proceedings because of lack of jurisdiction, since a judge can only preside over cases involving non-US citizens. If US immigration proves that the person is not a US citizen, or if the alien admits this, then the burden shifts to the alien. If the alien is an applicant for admission, then he or she must show beyond doubt that he or she is entitled to be admitted, and is not inadmissible under section 212. If the alien had been admitted to the US, then he or she must show by clear and convincing evidence that he or she is lawfully present pursuant to a prior admission. In order to meet this burden, the alien is entitled to have access to the alien's visa or other entry document, if any, and any other records and documents, not considered being confidential, pertaining to the alien's admission or presence in the United States.

If the person shows that he or she is lawfully present pursuant to a prior admission, the burden shifts to the US immigration service to prove that he or she is deportable. The decision of the US immigration judge on deportability must be based on reasonable, substantial, and probative evidence.

Either the alien, or the US immigration service, may appeal the decision of the US immigration judge, which appeal would be filed with the Board of US immigration Appeals in Falls Church, Virginia. In some cases, the alien or the US immigration service may choose to file a motion to reopen or motion to reconsider instead.

Relief from Deportation/Removal including Voluntary Departure and Cancellation of Removal

Voluntary Departure: A person subject to deportation or removal from the United States may still be eligible for some forms of relief, even under the harsh provisions of the US immigration Act of 1996. The most common form of relief requested is known as voluntary departure. Voluntary departure is the right to depart the United States at the alien's own expense, and with the concurrence of the US immigration service and/or the US immigration judge. By leaving under an order of voluntary departure, the alien does not have an order of deportation entered against him or her and, in most cases, it would permit the alien to apply for a new visa to enter the United States.

The 1996 act, however, has placed numerous restrictions on the grant of voluntary departure. The new act authorizes voluntary departure at two distinct times during the removal process. The first is prior to the conclusion of removal proceedings and the other is at the conclusion of removal proceedings.

In addition, the act places new requirements on an alien who is granted voluntary departure. The regulation provides that the US immigration service may attach to the grant of voluntary departure any conditions it deems necessary to ensure the alien's timely departure from the United States, including the posting of a bond, continued detention pending departure, and removal under safeguards. The alien shall be required to present to the service, for inspection and photocopying, his or her passport or other travel documentation sufficient to assure lawful entry into the country to which the alien is departing, and the service may hold the passport or documentation for sufficient time to investigate its authenticity.

Prior to a removal hearing, the US immigration service may grant voluntary departure, and extensions, for a period not to exceed 120 days. Voluntary departure may be granted only if the alien requests it, and agrees to its terms and conditions. The alien will be notified of the decision on Form I-210, Notice of Action--Voluntary Departure. If voluntary departure is denied by the US immigration service, the alien may renew the request before an US immigration judge in removal proceedings.

An alien who is granted voluntary departure, and fails to depart the United States within the time required, shall thereafter be ineligible, for a period of ten years, for voluntary departure, as well as other forms of relief such as adjustment of status, cancellation of removal, change of non-immigrant status, and registry.

An alien may also be granted voluntary departure during removal proceedings before an US immigration judge. The alien must make the request prior to or at the master calendar hearing, must make no additional request for relief, must concede removability, must waive appeal of all issues, must not have been convicted of an aggravated felony, and is not deportable under security or related grounds. The US immigration judge may grant voluntary departure for a period not to exceed 120 days.

If the request for voluntary departure is made more than 30 days after the master calendar hearing, the judge may grant voluntary departure for up to 120 days only if it is agreed to by the US immigration service. In addition, an US immigration judge may grant voluntary departure at the conclusion of a removal hearing only if he or she finds that the alien has been physically present in the United States for a period of at least one year preceding the date the Notice to Appear was served upon the alien; the alien is and has been a person of good moral character for at least five years immediately preceding the application; the alien has not been convicted of an aggravated felony, nor is a security risk; and that the alien has the means to depart the United States and has the intention to do so. Voluntary departure granted at the conclusion of proceedings is limited to 60 days.

The alien must present a valid passport or travel document, and shall be required to post a voluntary departure bond in an amount not less than $500.00.

The bond must be posted within five business days of the judge's order, and the US immigration service may hold the alien in custody until the bond is posted. In order for the bond to be cancelled and returned to the alien, the alien must provide proof of departure to the US immigration service. If the bond is not posted within five business days, the voluntary departure order shall vacate automatically and the removal order shall become effective.

A judge's decision denying voluntary departure can be appealed, but no appeal is permitted regarding the length of the voluntary departure granted.

Cancellation of removal for permanent residents, (previously known as 212(c) relief), is available to an alien who is inadmissible or deportable from the United States if the alien: (1) has been an alien lawfully admitted for permanent residence for not less than five years, (2) has resided in the United States continuously for seven years after having been admitted in any status, and (3) has not been convicted of any aggravated felony. Cancellation of removal and adjustment of status for non-permanent residents, (previously known as suspension of deportation), is available to an alien who is inadmissible or deportable from the United States if the alien:

• (1) Has been physically present in the United States for a continuous period of not less than ten years immediately preceding the date of such application;
• (2) Has been a person of good moral character during such period;
• (3) Has not been convicted of a criminal offense or security or terrorist related crime; and
• (4) Establishes that removal would result in exceptional and extremely unusual hardship to the alien's spouse, parent, or child, who is a citizen of the United States or an alien lawfully admitted for permanent residence. A special rule exists for a battered spouse or child.

In such cases an US immigration judge may cancel removal if the alien demonstrates that:

• (1) He or she has been battered or subjected to extreme cruelty in the United States by a spouse or parent who is a United States citizen or lawful permanent resident, or is the parent of a child of a United States citizen or lawful permanent resident and the child has been battered or subjected to extreme cruelty in the United States by such citizen or permanent resident parent;
• (2) The alien has been physically present in the United States for a continuous period of not less than three years immediately preceding the date of such application;
• (3) The alien has been a person of good moral character during such period;
• (4) The alien is not inadmissible as a criminal or terrorist, and has not committed an aggravated felony; and
• (5) The removal would result in extreme hardship to the alien, the alien's child, or ( in the case of an alien who is a child), to the alien's parents.

Cancellation of removal for permanent resident aliens does not specifically require that the alien have been continuously physically present in the United States, nor any specific showing of hardship. It also does not expressly require any showing of reformation or rehabilitation. However, based on court interpretations of the previous section 212(c), it must be assumed that these will be factors that the court will consider in deciding whether to grant the relief requested. (A more thorough review of the factors, which a court will consider in deciding whether to grant relief, will be discussed shortly). Cancellation of removal for non-permanent residents (formerly suspension of deportation) has been made much more difficult to obtain under the new law. For instance, the 1996 Act requires that the hardship be "exceptional and extremely unusual" whereas previously it had only been "extreme" hardship. Congress clearly stated that the alien must provide evidence of harm "substantially beyond that which ordinarily would be expected to result from the alien's deportation." In addition, the hardship must now be suffered by the alien's US citizen or lawful permanent resident spouse, parent, or child, and can no longer be only the alien's own hardship. Furthermore, the new act restricts this form of relief to any alien who has not been a person of good moral character at any time during the relevant period, which, according to the US immigration position, is at any time during the alien's stay in the United States.

Another area changed by the 1996 Act relates to physical presence and continuous residence. The new law states that any departure of more than 90 days, or aggregate absences of more than 180 days, breaks physical presence. In addition, the new law provides that physical presence and continuous residence is terminated upon the earlier of either of two occurrences:

• (1) When the alien is served with a notice to appear; or
• (2) When the alien has committed an offense that would render the alien deportable as a criminal or subversive.

Therefore, any time spent in the US after either of these occurrences would not add to the time necessary for the alien to apply for cancellation of removal.

What are the factors that a judge will consider in determining whether the alien has established hardship? The Board of US immigration Appeals in the case of Matter of Anderson listed twelve factors that it would consider in determining whether hardship existed in a particular case. These factors include:

• Economic hardship;
• The economic and political conditions in the country to which the alien will return;
• Financial status, including business and occupation;
• The age of the applicant and family;
• The health of applicant and family;
• Length of residence in the US;
• Family ties in the US;
• Adaptation to the American way of life;
• Attachment to American friends and community;
• Involvement in civic and other community activities;
• The possibility of obtaining permanent residence in some other way;
• and the alien's US immigration history.

It is important to remember that the alien has the burden of proving that hardship exits. Therefore, the alien should be prepared to bring witnesses to court together with documentary evidence that establishes the key points in his or her case. Where witnesses are not available, the alien should bring affidavits of witnesses. These affidavits should be thorough and complete. You can also request the judge to issue a subpoena for documents or to take a deposition of a key witness. If your case is well prepared, with good documentation and strong witnesses, you will have an excellent chance to obtain the relief that you are seeking.

The new act also imposes an annual limit of 4000 on the number of aliens who can be granted cancellation of removal and adjustment of status. In addition, cancellation is not available to anyone whose removal was previously cancelled or whose deportation was suspended under the previous suspension provisions, or who was previously granted relief under the former section 212(c). Likewise, cancellation is not available for ten years to a person who was ordered removed after failing to appear at a removal hearing, unless there were exceptional circumstances for the failure to appear. It also is unavailable for ten years to anyone who failed to depart under the new voluntary departure provisions. Furthermore, aliens who are terrorists, who entered as crewmen, some non-immigrant exchange aliens, and those who have persecuted others are also not eligible for cancellation of removal.

An application for cancellation of removal, together with supporting documentation and filing fee, is filed on form EOIR-42A (for permanent residents) or EOIR-42B (for non-permanent residents) with the US immigration judge having jurisdiction over the proceedings.

Other Relief: In addition to voluntary departure and cancellation of removal, an alien may also be eligible to apply for adjustment of status, registry, or asylum and withholding of deportation while in removal proceedings. The requirements for asylum and withholding of deportation are contained in the following section.

Asylum and Withholding of Deportation

Section 208 of the US immigration and Nationality Act provides that an alien who is physically present in the United States, or at a land border or port of entry, may apply for, and be granted, asylum, if the Attorney General determines that such alien is a refugee as defined under the law.

The US immigration act defines refugee as any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

Withholding of deportation means that the Attorney General shall not deport or return an alien to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

To be successful on an asylum claim, the alien must prove:

• (1) That he or she has a well-founded fear of persecution or has suffered past persecution;
• (2) That such persecution is on account of race, religion, nationality, membership in a particular social group or political opinion; and
• (3) That asylum should be granted in the exercise of discretion.

The US Supreme Court has held that the term "well-founded fear of persecution" means a "reasonable" fear of persecution. The Supreme Court stated that the alien must prove specific facts through objective evidence to prove either past persecution or good reason to fear future persecution. Some factors, which many courts have held constitute persecution, include: murder, torture, prolonged detention, slavery, and cumulative mistreatment. Also, persecution can be economic in nature, but this must usually be very severe and accompanied by some other form of persecution. In recent years, sex-based persecution claims including female genital mutilation, homosexuality, and those with sexually transmitted diseases have been granted asylum. Factors, which have been held not to constitute persecution, include: general harassment, brief detention or incarceration, general economic hardship, general civil unrest in a country, refusal to be drafted in the country's armed forces, or where the applicant will be prosecuted for a violation of the country's criminal laws.

In order to prove a well-founded fear of persecution, the alien must show:

• (1) That he or she possesses a belief or characteristic a persecutor seeks to overcome in others by means of punishment of some sort.
• (2) The persecutor is already aware, or could become aware, that he or she possesses this belief or characteristic;
• (3) The persecutor has the capability of punishing the alien; and
• (4) The persecutor has the inclination to punish the alien.

Also, the government of the country must inflict the persecution, unless the government is unable or unwilling to offer protection against persecution at the hands of other groups. Likewise, a well-founded fear of persecution includes both subjective and objective elements, and the persecution must be based on one of the five grounds mentioned above.

The burden of proving persecution is on the alien. However, courts realize that a person fleeing their country may not always be able to take with them the evidence necessary to prove their case. Thus, an alien's own credible testimony supported by general documentary evidence of the conditions in the home country may be sufficient to prove a claim.

Even if an alien establishes a well-founded fear of persecution, asylum may still be denied because of a statutory bar or as a matter of discretion.

For instance, an alien who has been firmly resettled in a third country before entering the US is not eligible for asylum. Firmly resettled means that the alien was offered residence status, citizenship, or some other form of permanent resettlement by another country and traveled to and entered that nation as a consequence of his or her flight from persecution. Likewise, if an alien has persecuted others, is a security risk, or has been convicted by a final judgment of a particularly serious crime thus constituting a danger to the community of the United States, he or she is statutorily ineligible for a grant of asylum.

Finally, as mentioned above, asylum may still be denied as a matter of discretion (for instance if an alien has used false documents, has many arrests, even though no convictions, has lied to US immigration, etc.)

Even if asylum is denied as a matter of discretion, withholding of deportation may still be available, since this relief is mandatory, not discretionary. While an applicant granted only withholding of deportation may remain in the country and obtain employment authorization, this status will not lead to permanent residence, and US immigration can still attempt to deport the alien to a third country that might be willing to accept the alien.

There are two ways in which an alien may apply for asylum. The first is known as an affirmative application. In this manner, the alien files his or her application directly with the US immigration asylum unit, prior to their being placed in removal proceedings. The applicant will be interviewed on the asylum application, and may be accompanied by an attorney.

The application is filed, in triplicate, on US immigration form I-589, together with two photographs for each applicant fourteen years and older.

Currently there is no fee to file an asylum application; however, the new law permits the US immigration service to establish a fee if it desires. You should attach to the application documentation to support your case. This can include affidavits, news articles, country reports, and other proof of persecution. An asylum officer can adjudicate an asylum application in one of three ways:

• (1) The application may be approved. If the application is approved, the applicant who is now called an asylee may apply for adjustment of status to permanent residence one year after obtaining asylum status. In addition, the asylee's spouse and children, if included in the asylum application, and otherwise admissible, may also be granted asylum. If the spouse and children are outside the US, the asylee must file US immigration form I-730 with the appropriate service center. When approved, it will be sent to the consulate abroad where the spouse and children can receive refugee visas.
• (2) If the applicant is in status, and the officer wishes to deny the case, the applicant must be sent a notice of intent to deny, which sets out the reasons why the officer intends to deny the case, and gives the applicant at least ten days in which to rebut the notice. If the rebuttal is not sufficient, the application will be denied. However, the applicant can still remain in lawful non-immigrant status.
• (3) If the applicant is out of status, the asylum officer will refer the case to an US immigration judge for a removal hearing. The applicant can then renew the application for asylum before the US immigration judge and have a full hearing on the merits of the application.

In addition to an affirmative asylum application, an alien may file an application once they have been placed in removal proceedings. A hearing on the application will be held before an US immigration judge. The judge may request an advisory opinion from the State Department if he or she feels that it will assist him or her in reaching a decision in the case. As in any other case, the applicant should be prepared to present whatever evidence he or she has in support of the application.

If the US immigration judge grants the application, the asylee is then able to file for adjustment one year later. If the application is denied the alien may file an appeal to the Board of US immigration Appeals. (Please refer to the next section on appeals for a further discussion of the appeals process.)

The US immigration Act of 1996 makes some significant changes in the asylum process. The most important change states that a person seeking to file for asylum must do so within one year of arriving in the United States. In addition, those in the United States, prior to April 1, 1997, must file their applications before April 1, 1998. The only exception to filing late is if the alien can show changed circumstances in the alien's country which materially affect the applicant's eligibility for asylum, or that the alien was unable to timely file because of extraordinary circumstances.

Furthermore, the new act precludes asylum to anyone who had previously applied for asylum and had the application denied, and for any alien who has been convicted of an aggravated felony. Another provision of the new act states that if the Attorney General determines that an alien has made a frivolous application for asylum, the alien shall be permanently ineligible for any other benefit under the US immigration laws. Also, the new act states that an applicant for asylum is not entitled to employment authorization, but the Attorney General may permit it by regulation. Naturally, an attorney may represent an applicant for asylum, provided that it is at no expense to the government.

Finally, the new act states that there is no judicial review of denials or determinations relating specifically to applications filed after the time limit; determinations relating to resettlement in a third country; applications filed after a previous denial; and denials related to a finding of terrorist activity.

Appeals to the Board of US immigration Appeals, the Administrative Appeals Office, or the Federal Courts

The US immigration act provides the opportunity to appeal decisions of US immigration officers or US immigration judges to a higher level. How, and to which court or agency, your appeal should be directed is the subject of this section of the program.

The Board of US immigration Appeals, located in Falls Church, Virginia, is the highest administrative body for interpreting and applying US immigration laws. Its members include a Chairman and two Vice Chairmen who share responsibilities for Board management. The number of Board Members has varied over the years. Currently, the Attorney General is in the process of reducing the number of members from a high of twenty-three, down to eleven.

More complicated cases are often decided by three member panels; however, the entire board will hear the most important cases. Recently, the BIA has broadened and accelerated its "streamlining" process, by which it summarily reviews and denies appeals from US immigration judge orders. The BIA has begun to summarily dismiss many appeals of IJ decisions by "Affirmance Without Opinion." Under the "Affirmance Without Opinion" process, the BIA dismisses an appeal without any Board Member writing an opinion, often after review by only a BIA staff attorney and a cursory review by one BIA Member.

The Board exercises appellate jurisdiction over various types of actions. These include review of US immigration judges' decisions in removal cases; decisions of US immigration District Directors and US immigration judges on waiver applications; relative visa petition denials and approval revocations; bond, parole or detention determinations; and US immigration judge decisions on rescissions of adjustment of status. Also included in BIA review are a wide variety of applications, including fraud waivers under section 212(i) and waivers of inadmissibility under section 212(h). The BIA's review of deportation decisions includes review over the designated country of deportation; suspension of deportation (now cancellation) applications; voluntary departure applications; registry determinations; discretionary waiver application determinations; asylum applications; and adjustment of status applications.

Only aggrieved parties have standing to appeal to the Board. In relative visa petition cases, this means only the petitioner (or the petitioner and the beneficiary together) may file the appeal. In removal cases, only the person ordered removed has standing to take an appeal to the BIA. The BIA has broad authority to review both issues of fact and issues of law, to make its own independent findings of fact and to exercise its broad discretionary powers as it sees fit. Usually, however, the Board will accept an US immigration judge's findings of fact, on the rationale that the trier of fact had the better opportunity to assess credibility. The BIA generally limits its review to matters in the hearing record, and will not consider new evidence on appeal, absent exceptional circumstances.

You must file a notice of appeal on Form I-290A, together with the appropriate filing fee. The BIA may waive the filing fee for indigents. Appeals from decisions of US immigration judges are filed directly with the BIA, while appeals from decisions of the US immigration service are filed with the US immigration officer who has jurisdiction over the case. You must file the notice of appeal within the time periods specified in the regulations. In deportation cases, the Board must receive the notice within thirty days of the US immigration judge's decision. The notice of appeal is not considered filed until it is actually received, with a filing fee. If the last day to file falls on a Saturday, Sunday or legal holiday, then the period in which to appeal is extended to the next business day.

You must set out the specific reasons for the appeal on the notice of appeal form. Failure to comply with this requirement may result in a summary dismissal by the Board. The Board may also dismiss appeals that are frivolous or filed solely for delay. If oral argument is desired, you must request it in the notice of appeal. The BIA then has discretion whether to grant the request. You may submit a brief with the notice of appeal or you can request additional time, from the Board, in which to submit your brief on appeal.

The Administrative Appeals Office is located in Washington, DC, and is under the jurisdiction of the commissioner of the US immigration service. The AAO has jurisdiction over numerous types of actions including appeals from denials of employment-based preference petitions, appeals from denials of petitions for temporary workers (i.e., E, H, L, O, & P denials), appeals from revocation of approvals of immigrant visa petitions; re-entry permit application denials; and appeals from denials of applications for waiver of the two-year foreign residence requirement based on exceptional hardship or fear of persecution.

A single copy of a notice of appeal is filed on US immigration Form I-290B, together with the appropriate filing fee, within 30 days of the service of notification of the denial. If the service of the denial is by mail, an additional three days is added to the 30 days. If the last day to file falls on a Saturday, Sunday or legal holiday, the period in which to appeal is extended to the next business day. Appeals should be filed with the local US immigration office that issued the denial decision. An appeal is considered "filed" on the date on which it is actually received at the US immigration office.

The notice of appeal must state the specific reasons on which the appeal is based. Failure to do this may result in a summary dismissal of the appeal.

An appeal may also be dismissed if it is patently frivolous. If oral argument is requested, specific written reasons must be provided to explain why the argument is necessary. A single copy of a brief may be submitted simultaneously with the notice of appeal or you may submit your brief directly to the AAO within 30 days. In addition, for good cause shown, the AAO may extend the time in which to file your brief.

The regulations provide that in non-immigrant or immigrant visa petition cases, only the petitioner has standing to appeal. However, the alien beneficiary may also join in an appeal filed by the petitioner. On an appeal to the AAO, you are not limited to discussing matters contained in the record below. You may submit new evidence without any showing that the evidence was unavailable earlier. Also, the regulations provide that the US immigration service may, on its own, treat the appeal as a motion to reopen or reconsider.

Motions to Reopen or Reconsider: An alien may file one motion to reopen or reconsider the decision of an US immigration judge, the Board of US immigration Appeals, or the Administrative Appeals Office. For motions to reopen, the motion shall state the new facts that will be proven at a hearing to be held if the motion is granted, and shall be supported by affidavits or other evidentiary material. The motion to reopen shall be filed within 90 days of the date of entry of a final administrative order of removal, however there is no time limit on the filing of a motion to reopen if the basis of the motion is to apply for asylum or withholding of deportation and is based on changed country conditions arising in the country of nationality or the country to which removal has been ordered, if such evidence is material and was not available and could not have been discovered or presented at the previous proceeding.

A motion to reconsider must be filed within 30 days of the date of entry of a final administrative order of removal, and shall specify the errors of law or fact in the previous order and shall be supported by pertinent authority.

The motion is filed with the judicial body that rendered the last decision in the case, and must be accompanied by the appropriate filing fee. A copy of the motion must be served upon the US immigration trial attorney, if applicable.

Federal Court Appeals: The US immigration Act of 1996 significantly changes many areas of judicial review. In fact, the federal courts are now precluded from reviewing many types of cases over which they previously held authority.

In effect, the Act intends to eliminate in many respects the role of the federal courts in US immigration matters.

Most of the changes are contained in section 242 of the US immigration act. This section states that the federal courts shall have no jurisdiction to review decisions of US immigration officers concerning aliens in expedited removal proceedings. In addition no court shall have jurisdiction to review any judgment regarding the granting of relief under section 212(h), waiver of inadmissibility for criminal grounds; section 212(i), waiver of inadmissibility for fraud or misrepresentation; section 240A, cancellation of removal; section 240B, voluntary departure; or section 245, adjustment of status. Likewise, no appeal is permitted in the case of an alien who is inadmissible or deportable by reason of having committed certain criminal offenses, or whose application for asylum was denied by the US immigration service. (It should be pointed out that the constitutionality of many of these new provisions is being tested in the courts at this time. Therefore, it is possible that some of these new provisions will not stand. If any changes are made, they will be posted immediately to our web site).

In cases in which an appeal to the federal courts is permitted, the petition for review must be filed in the Court of Appeals, which has jurisdiction over the case, which is the circuit where the US immigration judge completed the case. The petition for review must be filed in the court of appeals within 30 days of the removal order becoming final, and must be accompanied by the appropriate filing fee. A copy of the petition must be served upon the U.S. Citizenship and US immigration Services.

It must be noted that the filing of the petition for review does not automatically stay removal of the alien from the United States. Therefore, a motion for stay of deportation or removal should also be filed with the appeals court.

Once the court of appeals has jurisdiction, it will establish a briefing schedule. These limits can only be altered if the court, for good cause shown, orders differently. If an alien fails to file a brief within the time required, the court must dismiss the appeal unless a manifest injustice would result.

If the decision of an appeals court were not favourable to the alien, the only recourse would be to file a petition to the US Supreme Court.