|
BRIEF ON NATIONALITY AND CONTINUING REFUGEE STATUS Jesse
A. Moorman, Esq. (Attorneys for Respondent) IMMIGRATION
COURT Case No. A BRIEF
ON NATIONALITY AND CONTINUING REFUGEE STATUS I. INTRODUCTION For the reasons set forth below, Respondent submits that either he is not removable, or that this Court has no jurisdiction to consider his removability. As the Service has not terminated his refugee status, he continues in refugee status, and may not be deported to his native country in violation of the Attorney General’s own regulations and the Geneva Convention. If his refugee status has terminated, it can only be through the acquisition of U.S. nationality, in which case he is not an alien and is not removable. A. <> was admitted under §207 as a Convention Refugee One admitted under §207 of the Immigration and Nationality Act (INA) as a refugee continues under the protection of the U.S. law on refugees, which itself implements the Geneva Convention Relating to the Status of Refugees (“Convention”), to which the U.S. bound by its accession to the U.N. Protocol Relating to the Status of Refugees..[i] The Convention definition the term “refugee” (Article I, Subsection A, ) is substantially equivalent to the definition of “refugee” provided in INA §101(a)(42). The Convention protection of refugees is terminated only on certain conditions: “C. This Convention shall cease to apply to any person falling under the terms of section A if: “(1) He has voluntarily re-availed himself of the protection of the country of his nationality; or “(2) Having lost his nationality, he has voluntarily reacquired it; or “(3) He has acquired a new nationality, and enjoys the protection of the country of his new nationality; or “(4) He has voluntarily re-established himself in the country which he left or outside which he remained owing to fear of persecution; or “(5) He can no longer, because the circumstances in connexion with which he has been recognized as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality....” “E. This Convention shall not apply to a person who is recognized by the competent authorities of the country in which he has taken residence as having the rights and obligations which are attached to the possession of the nationality of that country.” Thus the Attorney General can find that <>, who has been declared stateless and who has not left the United States, has ceased to be a “refugee” only if he has acquired a nationality. If he has acquired U.S. nationality, he is not an “alien” and is not removable. INA section 101(a)(3). If he has not acquired nationality, he remains a refugee and is not removable. Once a person has been recognized as a refugee, he or she continues under the protections of the Convention and the implementing legislation of Contracting States until he or she has acquired a new nationality, with the benefit of the protections that are implicated in that nationality, or until he or she has the same rights and obligations that attach to possession of that nationality. It is only when a refugee becomes a national, if not a citizen, of another country, acquiring the protections that inhere in that new nationality, that the protections of the Geneva Convention cease to apply. Unless <> is found by the competent authorities to be a national of the U.S., the protections of Geneva Convention still apply to him. The U.S. has implemented the above provisions of the Geneva Convention in several sections of the Immigration and Nationality Act. As previously mentioned, the term “refugee” is defined at §101(a)(42). Provisions for admitting refugees are codified at §207 of the Act. It should be noted that applicants for refugee status are essentially screened as potential immigrants at the time of adjudication of their refugee applications (with a wide-ranging waiver of inadmissibility), and processing for permanent residence is really only a completion of that procedure. 8 CFR §207.3. B. Who Is A National? As defined in the Immigration and Nationality Act: “(3) The term “alien” means any person not a citizen or national of the United States. * * * “(21) The term “national” means a person owing permanent allegiance to a state. “(22) The term “national of the United States” means (A) a citizen of the United States, or (B) a person who, though not a citizen of the United States, owes permanent allegiance to the United States.” 8 U.S.C. § 1101(a) The Board has held that the word “national” is “a word which in our terminology has replaced the word ‘subject,’ as it was used in the English law.” Matter of B, 3 I&N Dec. 729 (BIA 1949). “Subject” means, “One that owes allegiance to a sovereign and is governed by his laws. The natives of Great Britain are subjects of the British government. Men in free governments are subjects as well as citizens; as citizens they enjoy rights and franchises; as subjects they are bound to obey the laws. The term is little used, in this sense, in countries enjoying a republican form of government.” Black’s Law Dictionary, Fifth Edition. Allegiance means, “Obligation of fidelity and obedience to government in consideration for protection that government gives. Acquired allegiance is that binding a naturalized citizen. Local or actual allegiance, is that measure of obedience due from a subject of one government to another government, within whose territory he is temporarily resident.” Black’s Law Dictionary, Fifth Edition. What are the rights of a national of the United States? They are at least the same rights as lawful permanent residents enjoy, as well as the right of not being deportable. The status of a national can be terminated only by an act of Congress. Matter of Ah San, 15 I&N 315 (BIA 1975). Unlike citizens, U.S. nationals do not enjoy jus sanguinis, that is, they do not transmit U.S. nationality to their children born outside of U.S. territory. Matter of T, 5 I&N Dec. 380 (BIA 1953). U.S. territories are not States and are not part of the United States, except as Congress specifies. They are essentially foreign countries, where the U.S. constitution does provide the inhabitants recourse to U.S. courts, and, in the absence of legislation, the principle of jus soli does not obtain. The inhabitants of annexed territories do not become U.S. citizens automatically. The Supreme Court had observed in this regard, “it is doubtful if Congress would ever assent to the annexation of territory upon the condition that its inhabitants, however foreign they may be to our habits, traditions, and modes of life, shall become at once citizens of the United States.” Matter of S, 3 I&N Dec. 589 (BIA 1949), citing Downes v. Bidwell, 182 U.S. 244, 279, 21 S.Ct. 770, 45 L.Ed. 1088 (1901). It is typically the foreignness of certain groups of people, their habits, traditions and modes of life, that keeps us regarding them as “aliens.” This was the kernel of truth in the Supreme Court holding, “the act relates to foreigners as respects this country, to persons owing allegiance to a foreign government, and citizens and subjects thereof; and that citizens of Porto Rico, whose permanent allegiance is due to the United States; who live in the peace of the dominion of the United States ... are not ‘aliens’” Gonzales v. Williams, 192 U.S. 1, 13; 24 S.Ct. at 179 (1904). “The ‘natural rights’ to which the inhabitants of annexed territory are entitled are the rights to hold property, to religious freedom, to freedom of speech, press, due process, to immunity from searches, seizures, cruel and unusual punishment, etc. The ‘artificial rights,’ to which the citizens of annexed territory are not necessarily entitled, are the rights of citizenship, of suffrage and to ‘the particular methods of procedure pointed out in the Constitution, which are peculiar to Anglo-Saxon jurisprudence.’Matter of S, quoting Downes at 280-284. Not only do the citizens of territories that become U.S. possessions not automatically become citizens, they do not always acquire U.S. nationality. The Board has said, “It is authoritatively stated to be a universally recognized customary rule of the law of nations that the inhabitants of subjugated as well as ceded territory lose their nationality and acquire that (but not necessarily full citizenship) of the state which annexes the territory, subject only to any option expressly given concerning retention of former nationality.... ‘The same act which transfers their country transfers the allegiance of those who remain in it.’” Matter of B, 3 I&N Dec. 729 (BIA 1949). But this customary rule does not pass at full face value, even at the Board. The native inhabitants of the colonies were not always considered to have allegiance to the colonial power, so their allegiance did not necessarily, or usually, transfer to the United States upon acquisition. It was common for the treaties to provide for transfer of the nationality of the citizens of the colonial powers, but to provide that “‘The civil rights and the political status of the inhabitants / native inhabitants of the islands / territories ... shall be determined by the Congress.’” Matter of B, 3 I&N Dec. 729 (BIA 1949) fn.1. From this fact the Board concluded, “Clearly, it is only those who formerly owed allegiance to the ceding country whose nationality changes at the time of cession.” Matter of B, 3 I&N Dec. 729 (BIA 1949) fn.1. The Board has stated, “We cannot accept the ... assumption that Congress would permit an alien to acquire United States nationality merely by asserting an allegiance to the United States.” Matter of Tuitasi, 15 I&N Dec. 102 (BIA 1974). However the facts of Tuitasi are far different from those presented here. Tuitasi was a native of Western (British) Samoa who had lived since infancy in American Samoa, apparently without any immigration status. At 17 years of age she requested a passport from Western Samoa, and was apparently refused. She then obtained a “Certificate of Identity” from American Samoa indicating that she was not a U.S. national. She was adopted at 19 years of age by two nationals of the United States living in American Samoa. She never acquired any status of nationality or lawful permanent residence in the United States. The record does not reveal whether she had any status in American Samoa that would allow her to reside there. At 20 years of age she entered the United States as a visitor and overstayed her authorized length of stay. In deportation proceedings she made her case for being a U.S. national. The immigration judge and the Board rejected that argument. Tuitasi was, in most respects, quite alien to the United States. She had never lived in the United States and had never been governed by the bulk of our laws. She had lived in a territory that apparently had authority to confer resident status and citizenship independent of the law of the United States. At age 17 she had first sought to obtain a passport from Western Samoa, not American Samoa. Only when she failed to get that passport did she get an identity document from American Samoa. When that document specified that she was not a national of the United States, she got herself adopted under Samoan law to persons of U.S. nationality. (Even if the U.S. nationals had been her natural parents, her birth in Western Samoa would have deprived her of automatic acquisition of U.S. nationality, since the right of jus sanguinis does not belong to noncitizen nationals.) Then she traveled to the United States, for the first time in her young life, on a temporary visa. Her allegiance to the United States was not permanent; it was “local” allegiance, namely the “measure of obedience due from a subject of one government to another government, within whose territory he is temporarily resident.” She had never been a permanent resident of the United States. A national is one who owes permanent allegiance. <>, who was stateless, became a permanent resident, and has owed allegiance to the United States for five years, with the idea that it was permanent. Thus the language and the reasoning in Tuitasi do not apply to <>’s facts. The statutory definition of “national” has no restriction on who may be a national of the United States, as long as s/he owes permanent allegiance. The Act does not specify how an alien may acquire nationality apart from citizenship. A very limited class of persons, those born in outlying possessions, are “nationals” at birth. INA §308, 8 U.S.C. § 1408. As these grants of nationality are statutory, they might be taken away by Congress[1], regardless of subjective allegiance, as happened to Filipinos. Cabebe v. Acheson,[2] 183 F.2d 795, 802 (9th Cir. 1950), Rabang v. INS, 35 F.3d 1449 (9th Cir. 1992). However there is no indication in section 101 or in section 308, or elsewhere in the Immigration and Nationality Act, that U.S. nationality cannot be acquired other than by birth. Subjective statements from the putative national are not, in themselves, sufficient to establish nationality; some objective evidence of ties to the United States is required. U.S.A. v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997). (Illegal alien deported for aggravated felony convictions, who never had lawful status in the United States, had no objective evidence of nationality.) However the Ninth Circuit has not said what objective considerations would establish nationality. “Although we have not definitively defined the term national, we have suggested a person attains national status primarily through birth. [citations] “Without setting forth a precise and definitive definition of national, the term certainly does not include a person who illegally enters the United States and subjectively considers himself a person who owes permanent allegiance to this country. [citations] “Based on a complete lack of any supporting evidence, no jury could have found Sotelo to be a national. Any error in failing to instruct the jury regarding the term national was harmless.” U.S.A. v. Sotelo, 109 F.3d 1446, 1448 (9th Cir. 1997). Much different from Sotelo, someone who never had lawful status in the United States, is a Lawful Permanent Resident who has applied for naturalization. Such a person has been held to be a U.S. national, even though not naturalized. U.S.A. v. Morin, 80 F.3d 124, (4th Cir. 1996). The application for citizenship is a very strong objective indicator of permanent allegiance to the United States. Where a permanent resident retains another nationality, some courts have found that the person was not a national of the United States, despite subjective declarations of allegiance. Oliver v. U.S. Dep’t of Justice, INS, 517 F.2d 426 (2d Cir. 1975); Carreon-Hernandez v. Levi, 409 F.Supp 1208 (D.C. Minn. 1975), aff’d 543 F.2d 637 (8th Cir. 1976). The Oliver court found that “Mrs Oliver owes allegiance to Canada; apparently because of neglect rather than deliberate intention, she has not chosen ‘to renounce and abjure absolutely and entirely all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which the petitioner was before a subject or citizen,’ as § 337(a)(2) requires for naturalization. Chapter 1 of Title III indicates that, with few exceptions not here pertinent, one can satisfy § 101(a)(22)(B) only at birth....” 517 F.2d at 427-428 (2d Cir. 1975). The Carreon-Hernandez courts followed the Oliver analysis without any attempt to distinguish the case. However <>, aside from his ties to the United States, is stateless. He owes no allegiance elsewhere. The Court should consider whether <> is a national of the United States and therefore ceases to enjoy the protections of the Convention. C. Refugee status is not terminated by admission to permanent residence Under U.S. law, refugees who are admitted as immigrants are not treated as having lost their status as refugees. That refugee and permanent resident status are coexistent is demonstrated by the fact that the date of admission as a permanent resident is backdated to the date of admission as a refugee. 8 CFR § 209.1(c). There is nothing in the law or regulations to suggest that a refugee is losing his protection as a Convention refugee when he adjusts. Indeed it is assumed that the need for protection still exists. The provisions for according permanent residence to refugees and asylees are essentially different from those found at §245 of the INA. Under §209(a)(1), a refugee must be inspected and examined for admission as an immigrant after one year of presence in the U.S. This procedure is really a completion of the screening for admissibility that took place before approval of refugee status, consisting of a background criminal check and the completion of an application form. Under §209(c), most grounds of excludability are either inapplicable or waivable for humanitarian purposes, to assure family unity or when it is otherwise in the public interest. See In Re H-N-, Int.Dec. # 3414 (BIA 1999). Only drug-traffickers, terrorists or perpetrators of genocide are inadmissible to permanent residence. A refugee can file I-730 petitions for derivative refugee family members, up to two years (originally longer under the previous regulations) following admission to the U.S. 8 CFR § 207.7 Within such time, a refugee could already have been admitted as a permanent resident, but is still regarded as a refugee for purposes of bringing his spouse and minor children to join him in the U.S. A refugee may be issued a refugee travel document for travel outside the United States, even after being admitted as a permanent resident. 8 CFR § 223.2(b)(2)(i). No clearer recognition of a person’s refugee status can be found than a document indicating the person’s status as a refugee and entitlement to the protection of the U.S. government when traveling to other countries. A refugee who has been admitted to permanent residence will have that fact noted on the refugee travel document. There is a variety of statuses which can be accorded a refugee, while still being recognized as a refugee by the U.S. government.: The status which may be accorded the alien upon his return to the United States shall be noted in the block provided for that purpose on Page 4 by typing, as appropriate: PAROLE, CONDITIONAL ENTRANT, REFUGEE, ASYLEE, or LAWFUL PERMANENT RESIDENT. Id. at 223a.8. This is also in line with Ch.V, Art.28 of the Geneva Convention, which mandates the issuance of travel documents to refugees lawfully staying in the territory of Contracting States. (Emphasis added). The INS regulations themselves reflect that refugee travel documents are issued pursuant to Article 28 of the Geneva Convention. 8 CFR §223.1(b). Those regulations also contain the provision for refugee travel documents to be issued to lawful permanent residents who received LPR status as a direct result of their asylum or refugee status. Id. at §223.2(b)(2). Thus, <>, whom the Notice to Appear charges as “stateless,” could at this time apply for and be issued a Refugee Travel Document, which would accord him the continuing protections of a Convention Refugee. Holders of refugee travel documents may only be excluded for compelling reasons of national security or public order. 8 CFR §240.35[3] This protection accords with the government’s Convention obligations. Although this relates to someone seeking re-admission on a refugee travel document, it would be arbitrary, irrational and a violation of constitutional equal protection of the law to treat an alien in the United States with less concern for the provisions of the Convention. Cf. Francis v. INS, 532 F.2d 268 (2d Cir. 1976). D. <>’s refugee status has not been terminated as provided in the regulations Aside from the acquisition of nationality stated in the Convention, Congress has provided for the possibility of termination of refugee status at §207(c)(4)[4], and the Attorney General has promulgated the implementing regulation at 8 CFR §207.9[5]. The Service may move to terminate the refugee status of an alien . . . if it “determines that the alien was not in fact a refugee within the meaning of §101(a)(42) at the time of admission.” For example, there could have been a mistake of identity, a fraudulent application, or a history of the applicant’s participation in torture or genocide. This is the only provision in the INA for removal of the protections of the Geneva Convention from someone who has already been recognized as a refugee. It provides for notice to the refugee, with 30 days to respond to the intent to terminate. The Service has not taken any of these steps and cannot place <>, a Convention refugee, into removal proceedings. Unless the Service first terminates refugee status, and this Court does not have jurisdiction over the case. The Board is bound to uphold agency regulations, having only such authority as is created and delegated by the Attorney General. A regulation promulgated by the Attorney General has the force and effect of law as to the Board and Immigration Judges, as indeed to the INS also. See Matter of Ponce de Leon-Ruiz, Int.Dec. # 3243 (BIA 1995). Cf. Accardi v. Shaughnessy, 347 U.S. 260,265 (1954). Thus this Court is bound by the regulations promulgated by the Attorney General specifically for the purpose of terminating refugee status in certain limited situations. Absent the Service’s final termination of refugee status, there is no jurisdiction for the Immigration Judge to consider the Service’s attempt to remove <>, and this Court should terminate proceedings. The situation is similar to that addressed by the Board of Immigration Appeals in Matter of Medrano, 20 I&N 216 (BIA 1990), where the Board held that INS must terminate temporary resident status prior to commencement of deportation proceedings. In Medrano, the regulation at issue was 8 CFR § 245a.2(u) (1990), which allowed termination of temporary resident status only upon notice and an opportunity to respond. Only after termination of temporary resident status is the Service authorized to place the alien in deportation proceedings. Similar provisions are found at other parts of the INA. See 8 CFR §208.23(a), (b) and (e) (providing that termination of asylum depends on notice and an opportunity to present evidence before or during proceedings, with the burden of proof being on the Service). Interestingly, §208.23(e) indicates that such termination may occur in conjunction with exclusion, deportation or removal proceedings. This makes it clear that termination is to be seen as different from removal proceedings, though it may be combined with such proceedings, when the regulations so provide. No such provision appears at §207.9. Similarly, the regulation at §244.14 provides that Temporary Protected Status may be withdrawn upon notice and an opportunity to be heard, prior to initiation of removal proceedings. E. Continuance of Convention refugee benefits is an expression of U.S. political and foreign policy concerns It is noteworthy that refugee status may be terminated in a far narrower range of conditions than may asylum status. Cf. INA §207(c)(4) with §208(c)(2). The latter statute explicitly provides a warning that a grant of asylum is temporary only, and may be terminated if there is a fundamental change in the circumstances on which asylum was based, the alien is later found to be inadmissible or deportable on certain criminal grounds, or the alien was firmly resettled in another country prior to arrival in the U.S. No such warning or conditions are found at §207(c)(4), relating to termination of refugee status. Such a provision reflects the reality that the granting of refugee status is closely intertwined with political and foreign policy concerns of the U.S. government. As such, refugee status is only to be disturbed in the most extreme situations. Frequently, the U.S. accepts large numbers of refugees whose situation has resulted from ideological conflicts or wars of liberation. It is the intent of Congress to give the maximum protection to those who have fled traumatic conditions and gone through the often tortuous process in foreign countries of gaining protection in the U.S. A refugee coming to this country is treated as one who has come to spend the rest of her life here. It would be astonishing to that person to be told that she was forfeiting U.S. protection by becoming a permanent resident - essentially exchanging a favorable status for a less favorable one. Such an outcome would require clear notice and warning of the privileges being lost by adjustment to permanent residence, or there could be a constitutional violation of due process. <> certainly did not waive his right to protection as a refugee, and present procedures have no provision for such a waiver. The significance of foreign policy concerns in this area is demonstrated by the fact that many individuals who flee their native countries on grounds of persecution and who are recognized as refugees are no longer considered as citizens of that country and become stateless. Ultimately, when the U.S. tries to deport such people back to their native countries, it is unable to do so, resulting in the anomaly of indefinite detention of those who came to the U.S. as refugees. Clearly, even refugees are subject to sanctions for criminal conduct. However, their deportation or removal has not been provided for by Congress. There is a regulation providing for exclusion of a refugee who is found to be excludable for purposes of adjustment to permanent residence. 8 CFR §209.1. However, even a refugee applicant for permanent residence is afforded generous inapplicability and waiver of most exclusion grounds, and only if such waiver is denied may he be placed in exclusion proceedings to renew his application before an immigration court. Nothing in the regulations provide that an order of exclusion from permanent residence results in termination of refugee status. Nor is there an equivalent procedure for refugee permanent residents who have committed offenses after admission to permanent residence. The provisions of former §243(h) of the Act (now found at §241(b)(3)) reinforce this point, in that a refugee has already been found by the Attorney General to warrant protection and may therefore not be removed to the country from which he or she fled, absent termination of refugee status, except for compelling reasons of national security or public order. There being no statutory or regulatory provisions for <>’s removal without termination of his status, the INS cannot charge or demonstrate reasons for his expulsion. <> is not charged with being a spy, anarchist, communist or terrorist, nor with committing genocide. He has not committed any drug trafficking offenses. The Service cannot seriously contend that he represents a threat to public order by reason of having stolen a bicycle, a walkie-talkie and some drug paraphernalia. II. CONCLUSION Given that he is either a national of the United States or is still a refugee, <> has been improperly placed in removal proceedings, and asks that this Court terminate proceedings in this matter. Date: April 18, 2000 Respectfully submitted JESSE A. MOORMAN Attorney for <> Certificate of Service The undersigned certifies that on April 18, 2000 the within document was served upon INS District Counsel by mailing a copy to Deborah Clousing, Assistant District Counsel, 2001 S. Seaside Ave., San Pedro, CA 90731. Date: April 18, 2000 [1]Removal of statutory nationality might still leave open the question of common law rights of a “denizen” of the United States. INA § 331(a) & (d), 8 U.S.C. § 1442(a) & (d); Carlson v. Landon, 342 U.S. 524, 536 (1952); Fong Yue Ting v. U.S., 149 U.S. 698, 723 (1893). [2]Until July 2, 1946, Filipinos were not eligible for naturalization as citizens of the United States. Although the Act of June 29, 1906 authorized ‘the admission to citizenship of all persons not citizens who owe permanent allegiance to the United States ...’ Filipino non-citizen-nationals were not eligible for naturalization because of racial limitations. Cabebe 183 F.2d at 800. The court found the status of Filipinos “to be entirely separate from any phase of adherence to the United States. [¶] We hold that Cabebe is not a national of the United States ... therefore, he is an alien and under the restrictive law we have heretofore adverted to he is not entitled to any relief upon his petition.” Cabebe, 183 F.2d at 802 (9th Cir. 1950) [3]“(c)-- Holders of refugee travel documents. “Aliens who are the holders of valid unexpired refugee travel documents may be ordered excluded only if they are found to be inadmissible under section 212(a)(2), 212(a)(3), or 212(a)(6)(E) of the Act, and it is determined that on the basis of the acts for which they are inadmissible there are compelling reasons of national security or public order for their exclusion. If the immigration judge finds that the alien is inadmissible but determines that there are no compelling reasons of national security or public order for exclusion, the immigration judge shall remand the case to the district director for parole.” [4]“The refugee status of any alien (and of the spouse or child of the alien) may be terminated by the Attorney General pursuant to such regulations as the Attorney General may prescribe if the Attorney General determines that the alien was not in fact a refugee within the meaning of section 101(a)(42) at the time of the alien's admission.” [5]“§ 207.9 Termination of refugee status. “The refugee status of any alien (and of the spouse or child of the alien) admitted to the United States under section 207 of the Act shall be terminated by any district director in whose district the alien is found if the alien was not a refugee within the meaning of section 101(a)(42) of the Act at the time of admission. The district director shall notify the alien in writing of the Service's intent to terminate the alien's refugee status. The alien shall have 30 days from the date notice is served upon him/her or, delivered to his/her last known address, to present written or oral evidence to show why the alien's refugee status should not be terminated. There is no appeal under this chapter from the termination of refugee status by the district director. Upon termination of refugee status, the district director shall process the alien under sections 235, 240, and 241 of the Act.” [i].“In 1968 the United States acceded to the United Nations Protocol Relating to the Status of Refugees, Jan. 31, 1967, [1968] 19 U. S. T. 6223, T. I. A. S. No. 6577. The Protocol bound parties to comply with the substantive provisions of Articles 2 through 34 of the United Nations Convention Relating to the Status of Refugees, 189 U. N. T. S. 150 (July 28, 1951) with respect to "refugees" as defined in Article 1.2 of the Protocol.” Stevic,467 U.S. 407, 416-417 (1984) |
