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Sometimes people who were not born in the United States are citizens anyway, based on the state of the law at the time of their birth. In fact, the history of citizenship laws in the United States is fairly complicated. Anyone born before 1941, to one parent who is a United States citizen, is also a citizen as long as the parent resided at any time in the United States prior to the child’s birth.

 

Also, anyone born from January 13, 1941 to December 24, 1952 is automatically a citizen upon birth, provided their U.S. citizen parent was physically present in the United States for ten years prior to the birth of the child, and five of those ten years were after the parent’s 16th birthday. Thus, only parents who had their kids after turning 21 would be able to transmit citizenship to them. Recently, I had a client fall in this trap, because his father had him when he was a few months under 21, and therefore he, after having been in the United States since he was just a few days old, had to apply for permanent residence as a 50+ year old man. Luckily for him, he was allowed to do this under the “registry” laws of the 1970s.

 

From 1952 to 1986, the requirements were that the parent have resided in the United States for ten years prior to the child’s birth, five of which were after the age of 14, instead of 16. This small correction would have helped the client mentioned above, as his father would have been able to transmit citizenship to him.

 

Currently, the United States citizen parent need only live in the U.S. for five years before the child’s birth, two of which are after the age of 14. *This article does not include analysis of the situation where the parent is in the military. If this situation applies to you, I suggest you contact an attorney for a detailed review of your case.

 

Today I received a lengthy and well-reasoned decision from the Kansas City Immigration Court, approving my pro bono client, an 18-year-old Honduran child. This is the first of the two pro bono cases we wrote about back in September. The Judge accepted our argument that the abuse the child suffered in Honduras did, in fact, rise to the level of persecution, that his family member who was a well-known and active gang member had persecuted him, and would likely persecute him in the future if he was returned to Honduras. Additionally, she accepted that the government in Honduras would not or could not protect him, and that the situation there has not changed enough for him to return safely. She also found that he had a reasonable fear of rival gang members or the police, simply for being related to the gang member. Lastly, she found that he couldn't go to any other part of Honduras to avoid persecution.

This young man from Honduras was clearly deserving the protection of the United States, and I am extremely appreciative of the expert academic who provided a report on Honduras which the judge specifically cited as authoritative, and the therapist who met with him several times and provided in-person testimony to the court. They provided their services pro bono as well, and did a tremendous job, and really responsible for his being approved for asylum. I can only hope that the second of the two cases turns out as well. 

The government does have the right to appeal the decision of the judge within 30 days, so he is not entirely in the clear yet. However, I do feel that the decision of the judge was so well-written and comprehensive that it seems very unlikely they would ultimately prevail before the Board of Immigration Appeals. That being said, it would be terrific if they decided not to appeal, so that he could move forward receiving benefits as an asylee in the United States.

 

Beginning in August 2010, all non-detained removal cases from St. Louis will be moved to the Kanas City Immigration Court. Previously, the St. Louis cases were handled by televideo from the Immigration Court in Oakdale, Louisiana. The Department of Homeland Security office which housed the televideo courtroom in St. Louis will no longer house non-detained hearings. Any new non-detained cases arising in St. Louis will be handled in Kansas City.  This is a huge change in procedures, and is likely to lead to a significant backlog in cases in Kansas City, as well as the difficulty in those from St. Louis coming to Kansas City for hearings. 

A large part of our practice involves representing individuals before the Immigration Court, and we could of course take on cases from St. Louis as well.  Already, the Kansas City Immigration Court has jurisdiction over all cases arising out of the entire state of Kansas, and the Western half of Missouri.  After the new procedures are in place, the court will take on all cases from Kansas and all of Missouri, except for detained cases from Eastern Missouri.

Our office is a mile away from the Kansas City Immigration Court, and we would be happy to assist any individuals from the St. Louis area with their deportation cases. Here is the FAQ from the Kansas City Immigration Court:


Week after week I sit in my office and listen to young men and women tell me about the problems they face, where the alien spouse or boyfriend was born abroad and brought to the United States as a young child. They then grew up here, went to High School, settled down, had some kids, and now face deportation. Why? Well, because the law was changed in 1996 to require them to show “extremely unusual hardship” to those kids if they are deported. While there is no real definition of this level of hardship - it is clear that it requires a showing of hardship that is rare. In other words, most of these young people won’t qualify for relief and so, even though they have been here for years, playing by the rules, enriching our society, and building new families here. It also makes little sense to send people educated in the United States to other countries who will then reap the benefit of their knowledge.

 

There are potential solutions out there right now in the United States House and Senate, that you can call on your representatives to support. The Development, Relief, and Education for Alien Minors (DREAM) Act, also known as H.R. 1751, the “American Dream Act”, and S.729, the “DREAM Act of 2009” is currently pending. For more information, please go to this website.

 

These kids deserve a path - they were brought here against their will as children, often in dangerous ways, and it should not be held against them. In order to qualify for permanent residence under the DREAM Act, they would have to have come to the United States before they  turned 16, been here for five years since entry, complied with selective service requirements, not be younger than 12 or older than 35 when the bill is enacted, have graduated from a U.S. High School, been accepted into an institution of higher education or obtained their GED, and be of good moral character.  Once approved, the alien would receive conditional residence for six years, during which time they would need to establish that they have completed two years of either college education or military service.

The United States Supreme Court has not always made the best decisions regarding the rights of Immigrants in either immigration or criminal courts. However, the recent decision in Padilla v. Kentucky does go a long way to insure the rights of aliens in criminal proceedings.  What the Court holds is that criminal attorneys are required to provide competent immigration advice to criminal clients:

It is our responsibility under the Constitution to ensure that no criminal defendant—whether a citizen or not—is left to the “mercies of incompetent counsel.” Richardson, 397 U. S., at 771. To satisfy this responsibility, we now hold that counsel must inform her client whether his plea carries a risk of deportation. Our longstanding Sixth Amendment precedents, the seriousness of deportation as a consequence of a criminal plea, and the concomitant impact of deportation on families living lawfully in this country demand no less.

 

Because of this, there will likely be a large amount of cases reopened for the ineffective assistance of criminal attorneys who did NOT provide information about a plea agreements' impact on their immigration status. This kind of motion could lead to a new criminal or immigration proceedings, to allow aliens a chance to reconsider the plea agreement with full knowledge of the immigration consequences.

For this reason, it is vitally important that all immigrants (including those with no status, some status, or permanent residence), and all criminal attorneys who have cases involving immigrants, contact competent immigration counsel to determine what the impact of a proposed plea agreement will be. This is something that I have a lot of experience with, and would be happy to discuss with criminal counsel or immigrants in criminal proceedings.  Click on the "Contact Us" tab above for information.

 

 

 

 

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