Media Inflames Over New Citizenship Policy

But it's why Art Arthur has a job

By Andrew R. Arthur on August 30, 2019

On Wednesday the Los Angeles Times ran the following headline: "New citizenship rules for children of U.S. military members cause confusion". Confusion for whom? Obviously reporters who failed to read the 11-page "policy alert" U.S. Citizenship and Immigration Services (USCIS) put out the same day. Stories like this are why I have a job.

The Los Angeles Times reported:

U.S. Citizenship and Immigration Services released updated guidance Wednesday that appears to mostly affect non-citizen service members but which caused confusion among immigration lawyers and advocates after a document appeared to show children of American citizens would also be affected.

This gets a little weedy, but I am an "immigration lawyer" (and advocate, for that matter) and it is not that complicated.

First, there is section 301(c) of the Immigration and Nationality Act (INA), which states:

The following shall be nationals and citizens of the United States at birth:

(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person.

So, what is "residence"? Section 101(a)(33) of the INA explains:

The term "residence" means the place of general abode; the place of general abode of a person means his principal, actual dwelling place in fact, without regard to intent.

Pretty simple, and logical — your residence is where you generally live. Nonetheless, the aforementioned policy alert goes into excruciating detail about the differences between "residence" and "presence" (including a helpful chart), another phrase that is used in the INA, that explains those differences rather simply for anyone who bothers to take a look at it. But let me put it this way: If you live in a house in Kansas City, but you stay in a hotel in San Francisco for vacation for a week, you had presence in San Francisco, but your residence was Kansas City.

So, if you and the other parent of your child are U.S. citizens, and if even one of you had residence in the United States (or any of its outlying possessions) at any point before that child was born, that child is a U.S. citizen.

In a practical context, let's consider the child of a birth tourist. That foreign national female travels to the United States to give birth to a child who will (under current interpretations of the law) be a U.S. citizen, and after that birth picks up a passport for the child, and returns to her home country. Logically in this situation, the father is not a citizen, or the trip would likely not be necessary to confer citizenship.

Back in 2015, my colleague Steven Camarota estimated that there may be as many as 36,000 birth tourists annually. Those women are usually present pre- (for obvious reasons) and postpartum (for recovery and paperwork), but they never have a residence as defined in section 101(a)(33) of the INA.

With all that in mind, let's take a look at two sections of the INA that deal with children who are born outside of the United States to a U.S. citizen. The first is section 320 of the INA, which states:

(a) In general

A child born outside of the United States automatically becomes a citizen of the United States when all of the following conditions have been fulfilled:

(1) At least one parent of the child is a citizen of the United States, whether by birth or naturalization.

(2) The child is under the age of eighteen years.

(3) The child is residing in the United States in the legal and physical custody of the citizen parent pursuant to a lawful admission for permanent residence.

(b) Adoption

Subsection (a) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under section 101(b)(1) of [the INA].

(c) Name and birth date

A Certificate of Citizenship or other Federal document issued or requested to be amended under this section shall reflect the child's name and date of birth as indicated on a State court order, birth certificate, certificate of foreign birth, certificate of birth abroad, or similar State vital records document issued by the child's State of residence in the United States after the child has been adopted or readopted in that State. [Emphasis added.]

I actually dealt with this provision in a number of cases when I was an immigration judge. The usual scenario went like this: A respondent with a green card is over the age of 18 when he or she is convicted of a removable offense (usually an aggravated felony). That respondent has a parent who naturalized at some point after the respondent received permanent residence, but before the respondent turned 18. The respondent would either file an N-600 (the application for a Certificate of Citizenship under section 320 of the INA), or the respondent would deny alienage and offer evidence that he or she was residing with the parent at the time the parent naturalized or thereafter, before the respondent turned 18, and for that reason was actually a citizen.

In a separate scenario that many are likely familiar with, this is the provision that allows a foreign national minor adopted abroad by U.S. parents to automatically become a citizen after that child enters the United States (with a green card) and begins to reside with the parents. One judge before whom I appeared likened it to the "magic naturalization fairy" circling over the child's head and sprinkling it with citizenship after the child got home, an image I rather like.

Note that the N-600 simply confirms the automatic citizenship — the citizen does not need to go through the naturalization process, because he or she is, as stated, a citizen already. The applicant is required to take the oath of allegiance before the N-600 will be issued, however, pursuant to regulation; this is waived if the child is under the age of 14, and may be otherwise waived pursuant to policy. All of that said, remember that this provision focuses on "residence".

The second section is section 322 of the INA, which is a bit lengthier, so I will highlight several important points in the text:

(a) Application by citizen parents; requirements

A parent who is a citizen of the United States (or, if the citizen parent has died during the preceding 5 years, a citizen grandparent or citizen legal guardian) may apply for naturalization on behalf of a child born outside of the United States who has not acquired citizenship automatically under section [320 of the INA]. The Attorney General shall issue a certificate of citizenship to such applicant upon proof, to the satisfaction of the Attorney General, that the following conditions have been fulfilled:

(1) At least one parent (or, at the time of his or her death, was) is a citizen of the United States, whether by birth or naturalization

(2) The United States citizen parent-

(A) has (or, at the time of his or her death, had) been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years; or

(B) has (or, at the time of his or her death, had) a citizen parent who has been physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years.

(3) The child is under the age of eighteen years.

(4) The child is residing outside of the United States in the legal and physical custody of the applicant (or, if the citizen parent is deceased, an individual who does not object to the application).

(5) The child is temporarily present in the United States pursuant to a lawful admission, and is maintaining such lawful status.

(b) Attainment of citizenship status; receipt of certificate

Upon approval of the application (which may be filed from abroad) and, except as provided in the last sentence of section [337 of the INA, "Oath of Renunciation and Allegiance"], upon taking and subscribing before an officer of the Service within the United States to the oath of allegiance required by this chapter of an applicant for naturalization, the child shall become a citizen of the United States and shall be furnished by the Attorney General with a certificate of citizenship.

(c) Adopted children

Subsections (a) and (b) shall apply to a child adopted by a United States citizen parent if the child satisfies the requirements applicable to adopted children under [section 101(b)(1) of the INA].

(d) Children of Armed Forces members

In the case of a child of a member of the Armed Forces of the United States who is authorized to accompany such member and reside abroad with the member pursuant to the member's official orders, and is so accompanying and residing with the member-

(1) any period of time during which the member of the Armed Forces is residing abroad pursuant to official orders shall be treated, for purposes of subsection (a)(2)(A), as physical presence in the United States;

(2) subsection (a)(5) [temporary presence pursuant to lawful status] shall not apply; and

(3) the oath of allegiance described in subsection (b) may be subscribed to abroad pursuant to section [332 of the INA].

To get a certificate of citizenship under this provision, the alien or parent files a different application, an N-600K, and the child takes the oath if that application is approved.

Two things are of note in this provision: First, it relies a lot upon the "physical presence" of the parent in the United States. Second, it contains a specific provision (subsection 322(d)) that applies only to the children of members of the armed forces.

That last section was added by section 674(b) of division A, Title VI, subtitle G of the National Defense Authorization Act for FY 2008 (2008 NDAA), Pub. L. 101-208 (2008). The Congress that year was controlled by Democrats, specifically Speaker of the House Nancy Pelosi (D-Calif.) and Majority Leader Sen. Harry Reid (D-Nev.), and the bill itself was sponsored by Rep. Ike Skelton (D-Mo.). Remember that.

As the policy alert notes, in 2004 (under President George W. Bush), USCIS initially issued a policy that provided:

[C]hildren of U.S. government employees and members of the U.S. armed forces who were employed or stationed outside of the United States should be considered to be both "residing in the United States" for purposes of INA 320 and "residing outside of the United States" for purposes of INA 322.

So, for immigration purposes, those children were like the Schrödinger's Cat of immigration, both residing in and not residing in the United States, depending on which provision of the INA you were considering.

Go back, now, to NDAA 2008. That was passed and signed more than three years after USCIS issued its policy memorandum. At that point, the immigration cat was now residing abroad as if its United States citizen parent was physically present in the United States for purposes of satisfying the physical presence requirements in section 322(a)(2).

The fiction created by USCIS in 2004 for purposes of section 320(a)(3) of the INA was not included in the NDAA 2008, as the policy alert alludes to. Most importantly, however, section 322 of the INA by its terms only applies to children who were "born outside of the United States who have not acquired citizenship automatically under section 320 of the INA". The fiction in the 2004 policy actually was inconsistent with the INA itself at the time that policy was adopted, therefore, again a fact referenced in the policy alert.

That is not the only inconsistency between the 2004 USCIS policy and the INA. The 2004 fiction concerning "resid[ence]" in section 320 also contradicts the definition of "residence" in section 101(a)(33) of the INA, as the language above reveals (and as the policy alert notes).

There is another point in that alert that bears notice. Specifically, the fact that in the 2008 NDAA:

Congress also explicitly provided [in section 319(e) of the INA] that spouses of U.S. armed forces members who reside outside of the United States due to the member's official orders are considered to be residing in the United States for naturalization purposes. The fact that no similar provision was included for children of U.S. armed forces members in the acquisition of citizenship context is significant.

That it is. One of the tools used in statutory interpretation are the "canons of construction". They are rules that are applied to statutes to determine the intent of the drafters. One of the most useful is the "Negative-Implication Canon", where "[t]he expression of one thing in a statute implies the exclusion of others (expressio unius est exclusio alterius)." The amendment to section 319 of the INA for spouses of armed forces members (in section 674(a) of the 2008 NDAA) directly precedes the amendment to section 322 for the children of such members in section 674(b) of the 2008 NDAA, so the referenced omission is, logically, deliberate.

The policy alert further states:

Finally, the prior USCIS policy produced confusion in several respects. First, it may have resulted in inconsistent adjudications by USCIS officers adjudicating applications for certificates of citizenship, and U.S. Department of State (DOS) consular officers adjudicating passport applications. DOS has interpreted INA 320 to apply solely to children who are physically in the United States and does not recognize an exception by policy for children of U.S. military and U.S. government employees stationed outside of the United States.

In addition, the policy resulted in confusion as to the date a child acquired U.S. citizenship, depending on what form the parent (a U.S. government employee or U.S. armed forces member employed or stationed outside of the United States) used: Form N-600K would result in naturalization proceedings under INA 322, while Form N-600 would result in automatic acquisition of citizenship under INA 320. Children who acquire U.S. citizenship automatically are citizens as of the date on which they meet all eligibility criteria under INA 320, but children who seek naturalization under INA 322 become citizens upon taking and subscribing to the oath of allegiance (or upon approval of the application if the oath is waived). [Emphasis added.]

All that the new USCIS policy guidance does is clarify the definition of "residence" for purposes of the INA (a fairly minor point), and align the agency's policy with DOS policy and with the INA itself by eliminating a prior USCIS policy that itself was superseded (at least implicitly) by Congress in the 2008 NDAA.

That said, the Los Angeles Times reports:

The policy change is yet another roadblock that the administration of President Donald Trump has placed for people to live legally in the United States, said immigration attorney Martin W. Lester, who is based in Tennessee and who serves on the military assistance committee of the American Immigration Lawyers Association [AILA].

It appears to target children of service members who are legal permanent residents and not U.S. citizens, but could also affect citizens if they can't prove they lived in the U.S. for a certain amount of time. People in those scenarios would have to undergo a more cumbersome process for obtaining American citizenship for their kids.

These points are echoed in a Washington Post article on this policy alignment:

Martin W. Lester, an immigration attorney in Chattanooga, Tenn., and chair of [AILA's] military assistance program, said children born overseas to U.S. citizen parents usually can automatically claim citizenship as long as their parents had lived in the United States for five years, including for two years after they turned 14.

In the past, he said, federal immigration officials created exceptions for members of the military and government employees who did not meet that standard because they left the United States to serve the U.S. government overseas.

Now, he said, the new rule creates "second-class" citizenship for those parents who left before the five-year mark to serve the United States abroad.

"I don't understand how changing this policy makes America safer by telling its servicemen and women and its government employees that it's going to make it harder for their children to be Americans," he said. "Who possibly thought that this was a good idea?"

I respectfully disagree with many of these contentions.

First, the policy alignment does not create "'second-class' citizenship" for parents serving abroad. The policy as rescinded actually created a "special" class for their children that was contradicted by the INA, as set forth above.

Second, I would argue that the Democratic-led 2008 Congress "chang[ed] the policy", or at least failed to codify the policy that USCIS had created in 2004 out of whole cloth, to make it conform with the rest of the INA; USCIS is only adjusting its policy to mirror Congress's intent.

Third, as for "'second-class' citizenship" for parents who are in the service, in actuality Congress has already crafted a special rule that is applicable only to them by allowing them to accrue physical presence in the United States when they are actually abroad. They are actually already in a special class.

Consider an example of how this policy would apply in the real world. Lt. Mary Jones (USN) is a United States citizen at birth. For some reason, notwithstanding the fact that she has attained this rank, she left the United States before being physically present in this country (or its outlying possessions) for more than five years, or she left the country before she was 14 and has not been back since.

She marries a foreign national and has a child abroad. The time that she serves abroad is treated as if it were physical presence in the United States for purposes of her child becoming a citizen under section 322(d) of the INA, despite the fact that she was not in fact present here (or in U.S. outlying possessions). This is a status that is not accorded to any other citizen who is not in the service. Hardly "second class".

Fourth, the contentions that the administration is erecting "roadblocks" or "target[ing] children of service members" is inapt, and frankly inflammatory. USCIS is simply aligning its policies with the letter of the law, in this case the INA, as written by Congress. None of these arguments suggests that USCIS is actually violating the INA in this policy shift, because it plainly is not, as the fact that its policy now aligns with that of DOS shows. If Congress wants to amend section 320, or 101(a)(33) of the INA, it can do so. It will also have to amend section 322(a) of the INA, as well, rendering section 322(d) of the INA surplusage.

Immigration law can be dense, and requirements stringent. That can especially true of the law as it applies to citizenship. Frankly, this is how it should be: U.S. citizenship is a precious status, and should be treated as such and conveyed accordingly. Congress has written the law, and it is up to the executive branch to ensure that its policies conform with the law that Congress has written. That is all that USCIS has done.

Immigration is already a hot-button issue. Inflaming passions on the issue is not helpful to informing the public debate.